GEO.  T.  BISEL  CO. 
LAW  PUBLISHERS 

AND  STATIONERS, 
724  SANSOM  STREET, 
PHILADELPHIA. 


y 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TREATISE 


ON 


THE  PRICE  ACT 


RELATING  TO  REAL  ESTATE  IN  PENNSYLVANIA 


Act  April  18,  1853,  P.  L.  503 


BY 

ROLAND  R.  FOULKE 

OF 

THE  PHILADELPHIA  BAR 


Author  of"T/ie  Rule  Against  Perpetuities  >  &c., 
in  Pennsylvania" 


PHILADELPHIA: 

THE  GEORGE  T.  BISEL  COMPANY 
1914 


Copyright  1914 

by 
THE  GEORGE  T.  BISEL  COMPANY 


Preface 


Mr.  Price's1  treatise  on  the  act2  commonly  referred  to  by  his 
name,  has  been  out  of  print  for  many  years,  and  was  written 
so  soon  after  the  act  was  passed  that  whatever  its  merits,  it  is  of 
very  little  use  at  the  present  time.  Section  9  of  the  act3  has  al- 
ready been  discussed,  and  it  is  hoped  that  the  great  practical  im- 
portance of  the  other  sections  will  justify  this  discussion  of  them. 
Since  there  are  several  other  statutes  in  force,  in  some  respects 
duplicating  the  provisions  of  the  Price  Act,  it  has  been  found 
necessary,  for  the  sake  of  clearness,  to  refer  to  them  in  some 
detail,  and  the  act  is  so  generally  administered  in  the  Orphans' 
Court  that  some  observations  have  been  introduced  on  the  nature 
and  effect  of  Orphans'  Court  sales  in  general.  A  number  of 
forms  have  been  inserted  in  an  appendix  which  may  add  to  the 
practical  usefulness  of  the  book. 

In  conclusion,  I  desire  to  acknowledge  my  indebtedness  to 
Judge  John  Marshall  Gest,  of  the  Philadelphia  Orphans'  Court, 
for  the  great  interest  he  has  taken  in  this  work  and  for  many 
helpful  suggestions.  Indeed,  without  his  encouragement,  I  doubt 
if  the  book  would  ever  have  been  written. 

This  discussion  covers  the  laws  of  1913,  and  the  citations  have 
been  brought  down  to  244  Pa.  and  55  Super.  Ct,  each  inclusive. 

ROLAND  R. 

Philadelphia,  June  i,  1914. 


(1)  Eli  K.  Price,  an  eminent  member  of  the   Philadelphia  Bar,  who 
flourished  during  the  middle  of  the  last  century. 

(2)  April  18,  1853,  P.  L.  503. 

(3)  Relating  to  Accumulations.     See  Foulke,  Rule  Against  Perpetuities 
in  Pennsylvania,  etc.  (1909),  Chap.  25,  p.  371. 


TABLE  OF  CONTENTS 

CHAPTER  i. 
Preliminary  Discussion. 

Object  of  the  statute  and  general  view  thereof  §  10 

Constitutionality    §  1 1 

No  compulsory  sale  of  vested  interests  owner  sui  juris   §  12 

Jurisdiction 

Confined  to  cases   specified   §  13 

(Note:    Table  of  cases  in  the  act  and  its  supplements.) 

As  between  Orphans'  Court  and  Common  Pleas   §  14 

Only  as   to   real  property    §  15 

As  respects  situs  of  the  land  §  16 

Consent,  no  jurisdiction  by    §  17 

Notice 

General  discussion  §  18 

Married  women   §  19 

Act  construed  with  existing  legislation  §  20 

Court  may  ratify  that  which  it  could  authorize  in  advance  §  21 

Jurisdiction  extends  to  ownership  undivided  or  in  severalty   ....  §  22 

Title  acquired  by  purchase  §  23 

Superfluous  provisions  of  the  act  §  24 

Retroactive  operation  of  the  act §  24a 

CHAPTER  2. 
General  Jurisdictional  Facts. 

Preliminary    §  25 

To  the  interest  and  advantage 

Is  a  question  of   fact   §  26 

Case  of  a  mortgage    •..«...        §27 

As  between  life  tenant  and  remaindermen §  28 

Reasons  why  to  interest  and  advantage  §  29 

Sale  of  unproductive  real  estate   for  improvements  and  re- 
pairs            §  30 

Urgent  necessity  not  required   §  31 

Without  prejudice  to  trust  or  charity  §  32 

Without  violation  of  any  law  conferring  an  immunity  or  exemp- 
tion from  alienation 

Preliminary  discussion   §  33 

Cases  discussed 

Burton's  Appeal   §  34 

Heffner's  Appeal   §  35 

I 


z  TABI^E  OF  CONTENTS. 

Mercer  Home — Fisher's  Appeal  §  36 

Funck's  Estate   .' §37 

Law  as  to  immunity  from  alienation   §  38 

Effect  of  prohibition  against  alienation  as  to  a  church  §  39 

CHAPTER  3. 
Disposition  of  or  Concerning  "the  Title  Authorized  by  the  Act. 

Preliminary    §  40 

Sale 

May  be  public  or  private   §  41 

Must  be  for  an  adequate  consideration   §  42 

Distinction  between  public  and  private  sales  as  to  discharge 

of  liens   §  43 

Terms  of  the   sale    §  44 

Mortgage 

General  discussion  §  45 

Stevenson's  Estate  §  46 

Expenditure  of  mortgage  money   §  47 

As  to  confession  of  judgment §  47a 

Lease    §  48 

Exchange    §  49 

Conveyance  of  or  on  ground  rent 

Preliminary    §  50 

Extinguishment   or   sale   of   ground    rent   reserved   under   a 

power   §51 

Cases  to  which  act  applies   §  52 

Sale  or  extinguishment  under  the  act §  53 

Security  and  form  of  the  decree   §  54 

Square  and  adjust  lines  between  adjoining  owners   §  55 

Purchase  of  real  estate §  56 

Change  location  of  right  of  way  §  57 

Lay  out  and  vacate  streets,  subdivide  tract  §  58 

Who  may  petition  §  59 

Who  may  be  appointed  to  execute  the  decree  §  60 

CHAPTER  4. 
legal  Disabilities  of  the  Holder  of  the  Title. 

Preliminary    §  62 

Minority 

Preliminary  §  63 

Necessity  of  distinguishing  proceedings  under  other  acts   ...         §  64 
Notes,  Act  of  1832,  March  29,  P.  L.  190. 
Act  of  1836,  June  16,  P.  L.  682. 
Act  of  1851,  April  3,  P.  L.  305. 
Act  of  1853,  April  18,  P.  L.  503. 


OF  CONTENTS.  3 

Notice    §  65 

Undivided  interest 

Preliminary  discussion   §  66 

Necessity  of  joinder  of  other   parties    §67 

Gilmore  v.  Rodgers  §  68 

Pierce's   Estate §  70 

Proceedings    by    owner   of    undivided   interest    sui    juris 

where  there  is  a  minor's  interest  §  71 

Sale  of  undivided  interest  of  a  minor  to  another  tenant 

in  common   §  72 

Reasons  for  sale  of  an  undivided  interest  §  73 

Guardian  appointed  in  one  county,  land  in  another  §  74 

Foreign  guardian  §  75 

Lunatics  and  habitual  drunkards  §  76 

Act  of  1836,  June  13,  P.  L.  589 §  77 

Notice  in  case  of  lunatics §  78 

Weak-minded  persons §  79 

(Note  on  other  acts  relating  to  lunatics.) 
Coverture 

Married  women   §  80 

Married  men  §  81 

Corporations 

Preliminary    §  82 

Capacity  to  convey  §  83 

Holdings  in  excess  of  the  amount  prescribed  by  law §  84 

Religious,  beneficial  and  charitable  corporations   §  85 

Religious,  beneficial  and  charitable  associations,  §  86 

CHAPTER  5. 
Limitations  of  and  Liens  Upon  the  Title. 

Estates  tail 

Preliminary    §  90 

Not  necessary  to  resort  to  act  §  91 

Proceedings  under  act  may  not  bar  vested  remainders  §  92 

As  to  purchase  money §  93 

Requisites  of  petition §  94 

Mortgage  of  an  estate  tail   §  95 

Lease  of  an  estate  tail   §  96 

Contingent  remainders 

Preliminary    §  97 

Provisions  of  the  act  §  98 

Distinction  between  equitable  and  legal  remainders  §  99 

Contingent  remainders  and  ultimate  vested  remainders   §  100 

Requisites  of  petition §  101 

Notice    §  102 


4  TABLE  OF  CONTENTS. 

Remainders  to  a  class 

Preliminary  definition  of  remainders  to  a  class   §  103 

Formerly  supposed  that  act  provided  for  remainders  to  a  class  §  104 

Price  Act  did  not  provide  for  remainders  to  a  class  §  105 

Acts  of  1897  providing  for  remainders  to  a  class  §  106 

Equitable  remainders  to  a  class   §  107 

Discharge  of  purchase  money  from  remainders 

Preliminary    §  108 

Legal  remainders  §  109 

Equitable  remainders   §  no 

Mortgage  of  property  which  is  subject  to  contingent  remainders  §  in 

Executory  devise   §112 

L,ien  of  debts  not  of  record 

Preliminary §113 

Provisions  of  the  act    §  1 14 

Act  of  1832  to  be  distinguished   §115 

Grenawalt's  Appeal  §  116 

Hower's  Appeal   §117 

Pierce's  Estate   f §  118 

Orwig's  Estate   §  1 19 

Yard's  Estate    §  120 

Spencer  v.  Jennings   §  121 

Burkhardt's   Estate    §  122 

West  v.  Cochran   §  123 

Distinction  between  Price  Act  and  earlier  acts  §  124 

Private  sale  discharging  lien  of  debts  §  125 

No  jurisdiction  under  the  act  where  the  lien  of  debts  has 

expired §  126 

Distribution  of  the  proceeds  of  the  sale  §  127 

Act  applies  to  executors  selling  under  a  power   §  128 

Modified  fees    §  129 

CHAPTER  6. 
Trusts. 

Preliminary  discussion §  130 

Jurisdiction  of  equity  independent  of  the  act  §  131 

Act  of  1851,  April  3,  P.  L,  305 §  132 

Jurisdiction  now  probably  limited  by  the  act §  133 

Provisions  of  the  act  as  to  trusts.     Nature  of  cestui  que  trust 

immaterial §  134 

Where  trustee  has  power  which  cannot  be  exercised  §  135 

Vested  equitable  remainders   §  136 

The  Petition    §  137 

Notice  to  and  consent  of  the  cestui  que  trust  §  138 

Sole  and  separate  use  §  139 

Disposition  of  equitable  title  of  cestui  que  trust  §  140 


TABLE  o?  CONTENTS.  5 

Sale  by  trustee  to  cestui  que  trust  §  141 

Proceeds  of  the  sale   §  142 

Trusts  for  a  charity  §  143 

CHAPTER  7. 
Powers. 

Preliminary  discussion.    Division  of  powers  §  145 

Provisions  of  the  act   §146 

Powers  of  sale 

Provisions  of  the  act  as  to  §  147 

Time  not  arrived  for  execution  §  148 

Unreasonably  withhold  consent   §  149 

Powers  of  appointment  §  150 

CHAPTER  8. 
Specific  Performance  of  Decedent's  Contract. 

Provisions  of  the  act  §  151 

Provided  for  by  Act  of  1834  §  152 

Application  of  the  Price  Act  doubtful   §  153 

CHAPTER  9. 
Partition. 

Preliminary    §  154 

Provisions  of  the  act   §  155 

Jurisdiction  under  the  act  as  to  partition  proceedings   §  156 

Jurisdiction  under  the  act  as  to  amicable  partition  i 

Preliminary  discussion  §  157 

Wilson's   Estate    §158 

Hirsh's  Estate  §  159 

Thomas's  Estate  §  160 

Hunsworth's   Estate    §  161 

Conclusion  as  to  jurisdiction   §  162 

Security  in  case  of  partition  §  163 

CHAPTER  10. 

o 

Cemeteries  and  Burial  Grounds. 

Price  Act  seems  to  provide  for  all  cases  §  165 

Other  legislation  concerning  cemeteries   §  166 

Conclusion  as  to  cemeteries   §  167 

The  petition  , , §  168 


6  TABLE  OF  CONTENTS. 

CHAPTER  ii. 
Persons  Absent  and  Unheard  from  for  More  than  Seven  Years. 

Preliminary    §  169 

Provisions  of  the  act   §  170 

The  circumstances  from  which  the  law  will  presume  decease  ...  §  171 

Notice  to  the  absent  one  §  172 

The  petition  §  173 

Act  of  1913  §  174 

CHAPTER  12. 
Security. 

Preliminary,  provisions  of  the  act  §  177 

Cases  where  bond  is  required   §  178 

Amount  of  the  bond   §  179 

Sureties  on  the  bond §  180 

Cost  of  obtaining  security  §  181 

Time  of  filing  bond  §  182 

Necessity  of  filing  §  183 

Guardian's  security  where  land  lies  in  another  county  §  184 

Where  party  making  sale  resides  in  one  county  and  land  is  in 

another    §  185 

CHAPTER  13. 
Purchase  Money. 

Purchase  money  takes  the  place  of  land  sold  §  187 

Account  of  proceeds  §  188 

Devolution  of  the  purchase  money 

Preliminary,  provisions  of  the  act  §  189 

As  to  interest  of  a  minor,  etc §  190 

Interest  of  a  lunatic,  habitual  drunkard,  married  woman §  191 

Interest  of  a  person  sui  juris §  192 

Effect  of  equitable  conversion   • §  193 

Mortgage  money §  194 

Rents    §  195 

Proceeds  of  conveyance  on  ground  rent  §  196 

CHAPTER  14. 
Title  of  the  Purchaser. 

Preliminary  discussion  of  provisions  of  the  act §  197 

Act  presupposes  a  title  to  be  sold  §  198 

Provisions  as  to  title  to  be  read  in  connection  with  general  prin- 
ciples affecting  Orphans'  Court  sales  §  199 

CHAPTER  15. 
Orphans'  Court  Sales. 

Preliminary    ..,.., §  200 

Nature,  of  Orphans'  Court  sales  |  zoi 


OF  CONTENTS.  7 

Confirmation  of  sale    §  202 

Jurisdiction  of  the  Common  Pleas  over  Orphans'  Court  sales  ...  §  203 

Sales  under  a  power  to  be  distinguished  §  204 

Proceedings  for  a  sale   §  205 

Order  of  sale  controls  subsequent  proceedings  §  206 

Method  of  objecting  to  the  sale  §  207 

Where  court  has  no  jurisdiction   §208 

Dicta  as  to  Orphans'  Court  sales  §  209 

Statute  of  Frauds  §  210 

Price  of  the  sale 

Preliminary.     Must  be  adequate  §211 

Setting  aside  for  inadequacy  §  212 

Security   for  a  higher  bid.     Distinction  between   public  and 

private  sales  §  213 

Decree  of  confirmation  conclusive  as  to  price  §  214 

Fraud §  215 

Parties  who  may  object  to  the  sale §  216 

The  purchaser 

Preliminary    §  217 

Refusal  to  carry  out  terms  of  the  sale  §  218 

Purchaser  should  defend  by  objecting  to  confirmation  §219 

Liability  of  the  purchaser  after  confirmation   §  220 

Liability  after  deed  delivered  and  purchase  money  paid §  221 

Title  passed  by  the  sale  §  222 

Purchaser  obtaining  possession   §  223 

Rights  of  the  various  parties  pending  completion  of  the  sale 

Preliminary    §  224 

Title  of  the  heir  or  devisee  §  225 

Incidence  of  rights  and  liabilities  between  parties  §  226 

Destruction  of  buildings  by  fire  §  227 

Apportionment  of  interest  on  encumbrances  §  228 

Title  of  the  purchaser 

Preliminary    §  229 

Judgments  against  , §  230 

Rights  against  third  parties   §  231 

Devolution    §  232 

Alienation   §  233 

Deed 

Who  is  to  execute   §  234 

Endorsing  decree  on  deed   §  235 

Acknowledgment  and  recording    §  236 

Must  conform  to  the  decree  of  the  court  §  237 

CHAPTER  16. 
Collateral  Attack. 

Preliminary    §  240 

Former  law  as  to  decrees  of  the  Orphans'  Court §  241 


8  TABI,E  OF  CONTENTS. 

Present  law  as  to  decrees  of  the  Orphans'  Court §  242 

Decree  valid  notwithstanding  irregularities  §  243 

Decree  may  be  impeached  by  party  in  interest  without  notice  ...  §  244 

Decree  conclusive  of  facts  set  out  in  the  record  §  245 

Party  in  interest  who  had  notice  cannot  imp'each   §  246 

Where  record  does  not  show  that  the  court  had  jurisdiction,  the 

decree  may  be  impeached  §  247 

Fact  that  there  is  no  decree  may  be  set  up  in  a  collateral  action  §248 

Parol  evidence  to  vary  or  explain  proceedings   §  249 

Fraud    §  250 

Mistake 

Preliminary    §  251 

Unilateral    §  252 

Mutual   §  253 

Statement  of  the  law  in  Pennsylvania  as  to  collateral  attack  upon 

Orphans'  Court  sales   §  254 

CHAPTER  17. 
Discharge  of  Liens  by  Sale  Under  the  Act. 

General  rule  as  to  judicial  sales   §  257 

Distinction  between  Orphans'  Court  sales  and  sheriff's  sales  §  258 

Effect  of  public  sale  under  the  act  §  259 

Effect  of  private   sale  under  the  act   §  260 

Liens 

Mortgages     §  261 

Judgments     §  262 

Legacies  §  263 

Collateral  inheritance   tax    §  264 

Dower    §  265 

Taxes   . . . . §  266 

Debts  of  decedent  §  267 

Arrears  of  interest  on  the  lien     §  268 

Ground  Rents §  269 

Agreement  of  parties  as  to  discharge  of  liens §  270 

CHAPTER  18. 
Appeals. 


Appendix  A. 

Text  of  the  Price  Act  and  its  supplements, 
and  subsequent  legislation. 

Appendix  B. 

Forms. 

Table  of  Cases. 

Table  of  Statutes. 

Index. 


INTRODUCTION 

§  1.  The  State  unquestionably  has  power  to  control  the  use, 
transfer  and  devolution  of  property,  and  that  power  is  limited 
in  this  country  by  public  opinion  and  by  various  constitutional 
provisions  which  may  be  summed  up  for  the  purposes  of  our  dis- 
cussion in  the  requirements  that  (i)  there  must  be  some  ade- 
quate reason  for  regulating  the  ownership  of  property,  (2)  just 
compensation  must  be  made  to  an  owner  whose  property  is  taken, 
and  (3)  the  proceedings  must  be  by  due  process  of  law. 

§  2.  The  statutes  relating  to  the  use  and  devolution  of  prop- 
erty lie  outside  the  scope  of  this  discussion,  which  is  concerned 
solely  with  a  part  of  the  law  relating  to  the  transfer  of  property, 
The  question  of  just  compensation  and  due  process  of  law  are 
of  subordinate  importance  and  will  be  passed  for  the  present. 
The  adequate  reasons  for  the  exercise  of  the  power  of  regulating 
the  transfer  of  property  will  vary  from  time  to  time  in  different 
communities  and  at  different  times.  So  far  as  we  are  concerned, 
the  cases  generally  provided  for  by  law  may  be  summarized  as 
follows  under  the  divisions  of  involuntary  alienation  and  volun- 
tary alienation,  which,  however,  overlap  each  other  at  certain 
points. 

§  3.  Involuntary  alienation  is  prescribed  in  the  following 
cases :  ( i )  Where  it  is  necessary  to  sell  property  in  order  to  sat- 
isfy some  lien  or  charge,  as  the  lien  of  debts  or  legacies,  or  to  sat- 
isfy judgments,  and  the  principle  is  the  same  whether  the  obli- 
gation is  that  of  a  deceased  or  a  living  person.  In  each  case 
the  property  is  turned  into  money  in  order  to  satisfy  some  lawful 
charge.  The  alienation  here  is  involuntary  as  to  an  heir  or  a 
devisee  when  it  may  be  voluntary  as  to  a  testator.  (2)  Where 
it  is  desirable  to  appropriate  private  property  for  a  public  use, — 
the  exercise  of  the  power  of  eminent  domain.  (3)  Where  the 
absolute  ownership  of  property  is  divided  into  different  estates 
or  is  qualified  by  some  trust  or  special  limitation  preventing  some 
one  or  all  of  the  owners  from  disposing  of  the  property.  In 
this  case  an  alienation  may  be  authorized,  involuntary  as  to  some 
of  the  owners.  This  case  will  be  noticed  again  when  we  discuss 
voluntary  alienation.  The  typical  instances  under  this  heading 

(9) 


io  INTRODUCTION.  §  4-5-6-7 

are  where  property  is  subject  to  contingent  remainders  or  execu- 
tory devises  or  where  there  is  an  estate  tail  or  a  modified  fee. 

§  4.  The  case  of  ownership  in  common  is,  however,  not  re- 
garded as  an  adequate  reason  for  authorizing  one  co-tenant  to 
compel  the  others  to  join  in  a  transfer  of  the  property,  since  the 
law  provides  another  method  of  escape  from  the  accident  of  un- 
divided ownership,  that  is,  by  proceedings  in  partition.  Where 
one  of  the  co-tenants  is  under  a  disability,  as  minority,  the  law 
may  authorize  him  to  join  with  the  others  in  a  voluntary  aliena- 
tion. The  cases  of  voluntary  alienation  authorized  by  law  are 
those  where  the  owner  cannot  under  the  existing  law,  because  of 
some  disability,  make  the  transfer  himself.  The  principal  in- 
stance of  this  are  minority,  coverture,  insanity  and  drunkenness, 
trustees  who  have  no  power  of  sale  or  cannot  exercise  the  power 
conferred. 

§  5.  We  must  again  look  at  the  case  before  noticed,  where 
the  absolute  ownership  is  divided  into  different  estates  or  is  quali- 
fied by  some  trust  or  special  limitation.  Some  owner  of  the 
property  desiring  voluntary  alienation  invokes  the  aid  of  the  law 
(a)  to  compel  the  other  owners  to  join  in  the  transfer,  (b)  to  en- 
able him  to  make  the  transfer  without  their  joinder,  (c)  to  re- 
move some  defect  inherent  in  his  title,  and  preventing  him  from 
making  a  transfer  or  joining  with  the  others  in  a  transfer.  Where 
the  other  interests  are  vested,  the  law  only  authorizes  the  owner 
to  remove  some  defect  inherent  in  his  own  title.  Where  the 
other  interests  are  contingent,  he  may  be  authorized  to  transfer 
without  their  consent  but  may  not  compel  them  to  join  in  the  con- 
veyance. 

§  6.  In  the  case  of  a  trustee,  legislative  interposition  is  really 
not  needed  for  a  court  of  equity  obviously  had  power  to  author- 
ize the  conveyance  without  the  aid  of  a  statute  and  protect  the 
purchaser  from  a  subsequent  claim  of  the  cestui  que  trust.  In 
Pennsylvania,  however,  the  limited  notions  of  equity  and  cramped 
jurisdiction  of  the  courts  prevented  this  principle  being  generally 
recognized. 

§  7.  These  are  the  principal  headings  of  the  legislative  inter- 
position upon  the  alienation  of  real  estate.  A  number  of  statutes 
have  been  passed  in  Pennsylvania  providing  for  these  different 
cases,  and  one  of  them,  the  Price  Act,  the  Act  of  April  18,  1853. 
P.  L.  503,  and  its  supplements,  will  be  the  subject  of  our  dis- 
cussion. 


§8  INTRODUCTION.  n 

§  8.  There  are  several  other  cases  which  do  not  strictly  come 
within  the  headings  we  have  referred  to,  but  which  are  provided 
for  by  the  act  in  question.  For  instance,  one  case  is  where  the 
owner  of  property  is  absent  and  unheard  of  under  circumstances 
from  which  the  law  will  presume  his  decease.  In  this  case,  the 
statute  provides  for  a  transfer  of  the  property  by  someone  ap- 
pointed to  act  on  his  behalf.  This  is  merely  a  case  of  a  prescribed 
manner  of  establishing  a  presumption  of  a  fact  which  probably 
exists,  but  is  not  susceptible  of  proof  in  the  usual  manner.  This 
and  several  other  cases  will  be  discussed  in  their  proper  place. 
We  have  said  enough  perhaps  to  indicate  the  place  in  the  law  of 
the  subject  matter  of  the  pages  which  follow. 


§  io  PRELIMINARY  DISCUSSION.  13 

CHAPTER  i. 
Preliminary  Discussion. 

Object  of  the  statute  and  general  view  thereof  §  io 

Constitutionality    §  II 

No  compulsory  sale  of  vested  interests  owner  sui  juris  §12 

Jurisdiction 

Confined  to  cases   specified   §  13 

(Note:    Table  of  cases  in  the  act  and  its  supplements.) 

As  between  Orphans'  Court  and  Common  Pleas  §  14 

Only  as  to  real   property   §  15 

As  respects  situs  of  the  land §  16 

Consent,  no  jurisdiction  by    §  17 

Notice 

General  discussion  §  18 

Married  women   §  19 

Act  construed  with  existing  legislation  §  20 

Court  may  ratify  that  which  it  could  authorize  in  advance §  21 

Jurisdiction  extends  to  ownership  undivided  or  in  severalty §  22 

Title  acquired  by  purchase  §  23 

Superfluous  provisions  of  the  act  §  24 

Retroactive  operation  of  the  act    §  243. 

Object  of  the  Statute. 

§  10.  Upon  the  whole  statute  it  is  first  to  be  observed  that  it 
was  obviously  designed1  to  promote  the  alienability  of  real  prop- 
erty and  vest  in  the  courts  the  jurisdiction  to  determine  the 
propriety  of  the  disposition  of  a  title  in  a  case  provided  for  in 
the  statute.2 

The  court  is  authorized  in  the  cases  specified,  upon  petition 

(1)  The  full  text  of  the  statute  and  its  supplements  will  be  found  in 
Appendix  A.    The  preamble  is  as  follows :  "Whereas,  The  general  welfare 
requires  that  real  estate  should  be  freely  inalienable,"  (should  be  alienable, 
obvious  misprint)  "and  be  made  productive  to  the  living  owners  thereof. 
And  Whereas,  In  matters  which  the  judiciary  is  competent  to  hear  and 
decide,  it  is  expedient  that  the  courts  should  adjudicate  them  after  a  full 
hearing  of  all  parties,  rather  than  that  they  should  be  determined  by  special 
legislative  acts  upon  an  ex  parte  hearing." 

(2)  For  some  remarks  on  the  object  of  the  act,  see  Ludlow,  J.,  in  Brides- 
burg  Land  Co.'s  Petition,  7  Phila.  436  (1870),  s.  c.  27  L.  I.  317;  Penrose,  J., 
in  Yard's  Est.,  17  Phila.  436,  (1885),  s.  c.  15  W.  N.  C.  422,  42  L.  I.  17;  Rice, 
P.  J.,  in  Merrell  v.  Merrell,  5  Pa.  C.  C.  531  and  533  (1888),  s.  c.  5  Kulp  125, 
6  Lane.  L.  R.  17;   Thompson,  J.,  in  Gilmore  v.  Rodgers,  41  Pa.  120  (1861), 
s  c.  9  Pitts.  L.  J.  209,  sub  nom.  Gilmore  v.  Rogers,  19  L.  I.  28;   Holmes's 


14  CONSTITUTIONALITY  OF  THE  ACT.  §  n 

of  the  proper  parties,  to  decree  a  sale,  mortgage,  lease  or  con- 
veyance on  ground  rent,  etc.,  of  the  property  if  certain  circum- 
stances exist,  with  a  proviso  as  to  the  method  of  proceeding  and 
the  effect  of  the  decree  on  the  title.  The  statute  applies  exclu- 
sively to  the  legal  title  to  real  estate,3  and  specifies  certain  cases 
in  which  the  courts  may  authorize  the  disposition  mentioned  in 
the  act.4 

It  was  formerly  the  practice  to  procure  a  special  act  of  as- 
sembly when  any  one  of  the  cases  specified  arose,  and  the  Price 
Act  was  designed  to  obviate  the  necessity  of  such  frequent  ap- 
plication to  the  legislature.4* 

Constitutionality  of  the  Act. 

§  11.  The  constitutionality  of  the  Price  Act  has  been  sus- 
tained in  all  cases  where  the  question  has  been  raised.5  It  is  valid 
in  so  far  as  it  provides  for  the  sale,  etc.,  of  property  under  cir- 
cumstances which  are  generally  regarded  as  sufficient  to  author- 
ize the  interposition  of  the  legislature,6  and  in  so  far  as  it  does  not 
provide  for  the  sale,  etc.,  of  property  owned  in  fee  simple  by  a 
person  sui  juris.7  There  are  several  provisions  of  the  act  which 
seem  to  provide  for  the  sale,  etc.,  of  the  vested  interests  of  a  sui 
juris  owner  without  his  consent,7*  and  may,  therefore,  although 

App.,  53  Pa.  339  (1867);  Penrose,  J.,  in  Orwig's  Est,  7  Pa.  C.  C.  71 
(1889),  s.  c.  19  Phila.  158,  46  L.  I.  99;  Strong,  J.,  in  Smith  v.  Townsend,  32 
Pa.  434  (1859),  s.  c.  16  L.  I.  92. 

(3)  See  §  15,  post. 

(4)  See  §  13,  post. 

(4a)  For  a  discussion  of  some  of  the  cases  arising  under  these  special 
acts,  see  Price  on  The  Act  for  the  Sale  of  Real  Estate  ( 1874) ,  p.  12,  et  seq. 
p.  65. 

(5)  The   constitutionality  of  the   act   was   discussed   in   the   following 
cases:    Grenawalt's  App.,  37  Pa.  95  (1860),  s.  c.  Luz.  L.  Obs.  243,  sub- 
nom.  Greenawalt's  App.,  17  L.  I.  404;   Freeman's  Est,  181  Pa.  405  (1897)  ; 
Smith's  Est.,  207  Pa.  604  (1904). 

(6)  See  §  i,  ante. 

(7)  The  unconstitutionality  of  an  attempt  by  the  legislature  to  compel  a 
transfer  of  property  without  an  adequate  reason,  is  illustrated  by  the  Act 
of  April  15,  1869,  P.  L.  47,  authorizing  the  owner  of  property,  subject  to  an 
irredeemable  ground  rent,  to  compel  a  sale  of  the  ground  rent  to  him,  which 
act  was  declared  unconstitutional  in  Palairet's  App.,  67  Pa.  479  (1871). 

(73)  See  §  129,  post,  as  to  possibility  of  reverter  after  a  modified  fee. 
See  §  148,  post,  as  to  exercise  of  a  power  of  sale  before  time  fixed  for  its 
execution.  See  §  12,  post,  as  to  compulsory  sale  of  a  vested  interest. 


§  ii  CONSTITUTIONALITY  OF  THE  ACT.  15 

there  is  no  authority  for  the  statement,  be  regarded  as  unconstitu- 
tional. The  validity  of  the  provisions  as  to  a  contingent  re- 
mainder, executory  devise,  and  estate  tail,  is  sustainable  on  well- 
recognized  historical  grounds. 7b  The  constitutionality  of  the 
clause  providing  for  the  disposition  of  the  title  of  a  person  absent 
and  unheard  from  for  more  than  seven  years  under  circumstances 
from  which  the  law  will  presume  his  decease,  is  not  free  from 
doubt,7c  and  it  will  be  unsafe  to  take  a  title  under  this  clause  until 
the  Supreme  Court  has  sustained  its  constitutionality.  The  dis- 
cussion of  this  subject  belongs  more  properly  to  a  treatise  on 
constitutional  law,  and  will,  therefore,  be  omitted,  although  a  few 
of  the  principles  involved  are  referred  to  in  the  note.8  The  better 
opinion  probably  is  that  the  provision  is  constitutional. 

(7b)  As  to  the  constitutionality  of  the  act  in  providing  for  the  divesting 
of  contingent  remainders  and  executory  devises,  see  Smith's  Est.,  207  Pa. 
604  (1904).  As  to  the  divesting  of  vested  remainders  after  an  estate  tail, 
see  §  92,  post. 

(7c)  Query:  Does  the  same  objection  apply  to  the  clause  providing  for 
the  sale,  etc.,  of  the  title  of  a  married  woman  whose  husband  has  abandoned 
her  for  two  years  or  been  absent  and  unheard  from  for  seven  years? 

(8)  The  arguments  as  to  the  constitutionality  of  the  clause  in  the  Price 
Act  providing  for  the  disposition  of  the  title  of  an  absentee  are  probably  as 
follows  : 

r.  The  clause  is  unconstitutional  because  (a)  no  sui  juris  owner  of  a 
vested  interest  in  property  may  be  deprived  of  that  interest  by  ex  parte 
judicial  proceedings  of  which  he  has  had  no  notice;  (b)  the  application 
of  this  principle  to  the  case  in  question  is  illustrated  by  the  case  of  Scott  v. 
McNeal,  154  U.  S.  .14  (1894).  14  Sup.  Ct.  Rep.  1108,  38  L.  ed.  896,  which 
decided  that  an  administrator's  sale  under  order  of  a  court  of  probate  of 
the  property  of  a  living  person  is  void  even  though  that  person  had  been 
absent  for  more  than  seven  years,  and  the  court  had  investigated  the  cir- 
cumstances of  the  absence  before  issuing  the  letters  of  administration,  see 
Devlin  v.  Commonwealth,  101  Pa.  273  (1882). 

2.  To  this  argument  it  may  be  answered  that  the  case  of  Scott  v.  McNeal, 
supra,  is  inapplicable  to- the  matter  in  hand  since  the  decision  in  Cunnius  v. 
School  District,  198  U.  S.  458,  25  Sup.  Ct.  Rep.  721,  49  L.  ed.  1125,  aff. 
206  Pa.  469,  which  reversed  21  Super.  Ct.  340,  s.  c.  25  Pa.  C.  C.  17,  and 
which  affirmed  the  constitutionality  of  the  Act  of  June  24,  1885,  P.  L.  I5S, 
providing  for  the  administration  and  distribution  of  the  personal  estate  of  a 
person  absent  and  unheard  from  for  more  than  seven  years  on  the  ground 
that  such  a  statute  is  the  exercise  of  a  power  which  has  from  time  im- 
memorial been  generally  regarded  as  exercisable  by  a  sovereign  state 
over  property  within  its  jurisdiction,  and  being  within  the  police  power 
of  the  state,  is  constitutional  so  long  as  it  (i)  does  not  violate  any  express 
provision  of  the  constitution,  (2)  provides  for  (a)  a  reasonable  period  of 


16  VESTED  INTEREST,  OWNER  Sui  JURIS.  §  12 

No  Compulsory  Sale  of  Vested  Interest,  Owner  Sui  Juris. 

§  12.  The  act,  therefore,  does  not,  and  could  not  constitution- 
ally, except  perhaps  in  the  case  of  remainders  after  an  estate  tail, 
compel  the  sale,  etc.,  of  a  vested  interest  owned  by  persons  sui 
juris  or  authorize  the  divesting  of  such  an  interest  against  the 
consent  of  the  owner.9 

absence,  (b)  a  reasonable  amount  of  notice,  (c)   adequate  safeguard  for 
the  protection  of  the  interests  of  the  absent  one. 

3.  Since  the  Price  Act  applies  to  property  within  the  jurisdiction  of  the 
State  and  adopts  the  same  length  of  absence  as  that  specified  in  the  statute 
construed  supra,  and  is  on  its  face  a  regulation  of  the  property  of  an 
absent  one,  it  seems  to  follow  that  the  only  remaining  objections  to  the 
constitutionality  of  the  Price  Act  which  may  be  urged  are   (a)   that  it 
does  not  provide  for  a  reasonable  notice,   (b)  that  there  is  no  adequate 
safeguard  for  the  protection  of  the  rights  of  the  absentee. 

4.  In  answer  to  this,  it  may  be  said   (a)   that  the  Price  Act  does  not 
destroy  the  title  of  the  absent  one  but  merely  changes  the  nature  of  the 
property  to  which  that  title  attaches  from  real  estate  to  personal  property,  a 
legislative  provision  which  is  admittedly  constitutional,  when  the  proceeds 
of  the  sale  are  adequately  safeguarded;    (b)   that  the  act  expressly  pro- 
vides that  the  court  shall  not  make  the  decree  prayed  for  unless  (i)  they 
shall  be  of  the  opinion  that  it  is  to  the  interest  and  advantage  of  the  parties, 
(2)  it  shall  appear  that  the  person  in  question  has  been  absent  and  unheard 
from  from  more  than  seven  years,  etc.,  which  fact  must  be  duly  inquired 
into  by  the  court;    (c)  the  act  expressly  provides  for  notice  to  all  parties, 
and  leaves  it  in  the  discretion  of  the  court  to  make  such  orders  as  to  notice 
as  may  be  necessary  in  each  particular  case;    (d)  no  question  as  to  notice 
can  be  raised,  therefore,  except  in  so  far  as  it  may  be  urged  that  the  notice 
in  any  given  case  is,  under  the  circumstances  of  that  case,  so  inadequate  as 
to  be  unreasonable;    (e)  the  rights  of  the  absent  one  are  adequately  safe- 
guarded because  the  act  provides  that  the  proceeds  of  the  sale  shall  take  the 
place  of  the  land  and  be  subject  to  the  same  right  and  title;   the  absentee, 
or  his  heirs  or  devisees,  are,  therefore,  entitled  to  the  purchase  money,  for 
the  safe  custody  of  which  security  must  be  ordered.    The  doubt  as  to  the 
distribution  of  the  purchase  money  does  not  affect  the  title  of  the  purchaser 
because  the  right  of  the  absentee  is  transferred  intact  from  the  land  to  the 
proceeds.     This  clause,  therefore,  admirably  promotes  the  object  of  the 
statute  in  furthering  the  alienability  of  real  estate. 

5.  This  provision  of  the  Price  Act  may,  therefore,  be  held  constitutional, 
and  the  Act  of  1885,  supra,  unconstitutional.    If  the  Act  of  1885,  supra,  is 
constitutional,  a  fortiori  the  provision  in  question  is  constitutional. 

6.  Since  the  Price  Act  does  not  provide  for  the  distribution  of  the  pro- 
ceeds to  anyone  except  the  absentee  or  his  heirs  or  devisees,  it  follows  that 
they  must  be  distributed,  if  at  all,  in  his  absence,  under  the  Act  of  1885, 
supra. 

(9)  For  a  discussion  of  the  divesting  of  vested  remainders  after  an 
estate  tail,  see  §  92  post.    See  §  129  post.    See  §  148  post. 


§  12  VESTED  INTEREST,  OWNER  Sui  JURIS.  17 

Thus,  in  Van  Dusen's  Est.,10  where  a  tenant  for  life  petitioned 
for  a  sale  of  part  of  the  land  alleged  to  be  unimproved,  un- 
productive, and  a  source  of  great  expense,  for  the  payment 
of  municipal  improvements,  which  sale  was  opposed  by  three 
of  the  eight  devisees  in  remainder,  the  court  held  that  as  there 
was  no  trust,  no  contingent  remainders  or  executory  devises, 
the  owners  of  full  age  and  under  no  disability,  that  there  was  no 
jurisdiction  under  the  Act  of  1853  or  any  other  act.11 

So  also  in  Kerner's  Estate,12  there  was  a  petition  by  a  life 
tenant  for  leave  to  sell  real  estate  on  the  ground  of  its  unpro- 
ductiveness, which  was  objected  to  by  vested  remaindermen,  and 
in  consequence  refused,  the  court  saying  that  no  act  of  assem- 
bly authorized  such  a  proceeding.  Ashman,  J.,  pointed  out  that 
the  sweeping  language  of  Mitchell,  J.,  in  Freeman's  Est.13  was 
not  to  be  regarded  as  an  authority  for  the  granting  of  the  peti- 
tion in  such  a  case.14 

A  lease  and  possibly  a  mortgage  might  be  authorized  against 
the  consent  of  vested  interests  in  remainder,  because  in  this  case 
there  is  no  divesting  of  the  interest  or  compulsory  transfer 
thereof,  but  merely  an  act  done  in  furtherance  of  the  proper  ad- 
ministration of  the  property,  which,  if  well  advised,  would  benefit 
all  parties  concerned.  The  proceeds  of  the  mortgage  in  such  a 
case  must,  of  course,  be  spent  upon  or  in  ease  of  the  property.14* 
Any  diversion  of  them  to  another  purpose  would  be,  to  that  extent, 
a  divesting  of  the  vested  interests  and  contrary  to  the  express  pro- 
visions of  the  statute. 

(10)  ii  Pa.  C.  C.  201  (1892),  s.  c.  29  W.  N.  C.  573,  i  D.  R.  156.  For  a 
case  where  there  was  apparently  a  sale  by  a  trustee  with  a  joinder  of  the 
vested  remaindermen,  see  Owens'  Est.,  15  Pa.  C.  C.  196,  s.  c.  3  D.  R.  331 
(1894). 

(n)  As  to  the  unconstitutionality  of  earlier  acts  attempting  to  divest 
vested  interests  of  owner  sui  juris,  see  Ervine's  App.,  16  Pa.  264  (1851)  ; 
Kneass's  App.,  31  Pa.  87  (1825). 

(12)  30  Pa.  C.  C.  175  (1904),  s.  c.  13  D.  R.  311. 

(13)  181  Pa.  405  at  408  (1897). 

(14)  For  a  case  where  the  parties  were  all  sui  juris  and  able  to  make  a 
deed  to  the  property  without  the  decree  of  the  court,  yet  for  some  un- 
explained reason,  they  petitioned  under  the  Price  Act  and  had  a  trustee 
appointed  to  make  the  sale,  see  Carrier'  App.,  79  Pa.  230  (1875).     For 
a  case  of  a  sale  by  trustees  upon  petition  of  cestui  que  trusts  having  the 
entire  interest  and  entitled  to  terminate  the  trust,  see  Brooke's  Est.,  214 
Pa.  46  (1906). 

(i4a)   See  §  47  post,  as  to  mortgage  money. 


i8  CASES  WHERE  JURISDICTION  UNDER  THE  ACT.        §  13 

Jurisdiction. 
Confined  to   Cases  Specified. 

§  13.  The  courts  have  jurisdiction  to  enter  the  decree  author- 
ized by  the  act  only  in  the  cases  therein  specifically  enumerated. 
Unless  it  appears  that  one  of  the  defects  in  the  title  mentioned 
is  present  the  proceeding  will  be  null  and  void.16  This  is  so  be- 
cause the  Orphans'  Court  have  no  jurisdiction  at  all,17  and  the 
Court  of  Common  Pleas  have  no  equitable  jurisdiction  in  Penn- 
sylvania except  where  specifically  conferred  by  statute. 

The  cases  in  which  the  court  has  jurisdiction  are  not  arranged 
in  the  act  in  logical  order,  so  we  have  departed  from  it  and  re- 
arranged them  as  indicated  in  the  table  in  the  note.18 

(16)  This  subject  will  be  further  discussed  under  the  heading  of  Col- 
lateral Attack.    See  §  240  post. 

(17)  The  Orphans'  Court  'has  no  advisory  jurisdiction,  Morton's  Est., 
201  Pa.  269  (1901),  Jacoby's  Est,  201  Pa.  442  (1902),  Willard's  Est,  65  Pa. 
265  (1870).    But  see  Phila.'s  Pet.,  2  Brewst.  462  (1868)  ;    Rogers's  Est,  16 
W.  N.  C.  228  (1885),  contra.    And  the  jurisdiction  is  not  ousted  by  a  direc- 
tion to  the  executors  to  construe  the  will  with  a  provision  that  their  de- 
cision shall  be  final:   Reilly's  Est.,  200  Pa.  288  (1901).    Accordingly,  in  the 
following  cases  the  petition  was  dismissed :    Carpenter's  Est,  17  D.  R.  170 
(1908);    substituted  trustees  had  power  to  sell.     In  Crawford's  Est,  221 
Pa.  131   (1908),  the  circumstances  alleged,  to-wit,  the  lien  of  debts  not  of 
record,  did  not  exist. 

(18)  TABLE  OF  THE  CASES  TO  WHICH  THE  PRICE  ACT  AND  ITS  SUPPLE- 
MENTS APPLY. 

A.    Legal  disabilities  as  to  conveyance  of  title 
Where  legal  title  is  held  by 

Minors 

Lunatics  so  duly  found  by  inquisition 

Habitual  drunkards  so  duly  found  by  inquisition 

Married  woman  whose  husband  has 
Abandoned  her  for  two  years 
Been  absent  and  unheard  from  for  seven  years. 

Husband  with  wife  who  is 
Lunatic 
Minor 

Where  any  party  interested  is  under  a  legal  disability  to  sell 
and  convey 

Corporations 

Religious,  beneficial  or  charitable  societies  or  associations  in- 
corporated or  unincorporated 


§  14  JURISDICTION — ORPHANS'  COURT  AND  COMMON  PLEAS.      19 
Jurisdiction  as  Between  Orphans'  Court  and  Common  Fleas. 

§  14.  The  act  provides  in  the  first  section  as  follows :  "That 
in  all  cases  where  real  estate  shall  have  been  acquired  by  descent 
or  last  will,  the  orphans'  court,  and  in  all  other  cases  the  courts 

B.  Legal  limitations  of  and  liens  upon  the  title 

Estate  tail 

Title,  where,  is  subject  to 
Contingent  remainders 
Executory  devises 

Lien  of  decedents  debts  not  of  record 
Vested  remainders  which  are  liable  to  open  and  let  in  after- 

iborn  children 

Lands  devised  or  granted  for  life  or  the  life  of  another  with 
remainder  limited  to  a  class  of  persons,  some  or  all  of 
whom  may  not  be  in  being  at  the  time  of  making  the  de- 
cree. Act  June  15,  1897,  P.  L.  159.  Jurisdiction  only  con- 
ferred on  Orphans'  Court 

Where  property  is  devised  or  granted  for  special  or  limited 
purposes. 

C.  Trusts  superimposed  on  the  legal  title.     Equitable  limitations  of  the 

title. 

For  the  sole  and  separate  use  of  married  women 
For  minors. 

For  religious,  beneficial  or  charitable  societies  or  associations  in- 
corporated or  unincorporated 
For  or  by  any  other  corporation 
By  trustees  for  any  public  or  private  use  or  trust 
Generally  in  all  cases  where  estates  are  devised  or  granted  in  trust 

for  special  or  limited  purposes 
Trustees,  purchase  and  sale  of  real  estate. 

When  ground  rents  shall  have  been  reserved 

When  real  estate  shall  have  been  purchased  and  be  held  by  any 

person  acting  in  a  trust  or  fiduciary  capacity 
C.    Powers  over  the  legal  title 

Where  power  of  sale  may  exist  and 
Time  not  arrived  for  its  exercise 
Time  limited  for  its  exercise  has  expired 
1  Preliminary  act  not  done  to  bring  it  into  exercise 

Persons  required  to  consent  or  join  in  its  execution  are  any 
one  or  more 

(a)  Non  compos  mentis 

(b)  Removed  out  of  the  state 

(c)  Deceased 

(d)  Refuse  to  act 

(e)  Unreasonably  withhold  consent 


2O     JURISDICTION — ORPHANS'  COURT  AND  COMMON  PLEAS.  §  14 

of  common  pleas,  of  the  respective  counties  of  this  common- 
wealth, shall  have  jurisdiction  to  decree  the  sale,  mortgaging, 
leasing  or  conveyance  upon  ground  rent  of  such  real  estate  in 

Powers  of  appointment 

Defective  appointment  in  any  deed  or  last  will  and  testament, 
and  the  necessary  power  is  not  given  to  the  executor,  de- 
visee or  appointee  to  make  sale  or  conveyance  of  real  es- 
tate. 

Every  power  to  sell  in  fee  simple. 

Real  estate  created  by  deed  or  will  shall  be  taken  to  confer 
authority 

(1)  to  sell  and  convey,  reserving  ground  rent,  or  rents  in  fee, 
and  the  same  to  release  or  extinguish  according  to  law 
and  the  stipulation  of  the  deed 

(2)  to  grant  and  convey  such  ground  rent  or  rents  to  any 
purchaser  free  of  all  trusts 

E.  Parol  contract  of  decedent 

Where  decedent  shall  have  contracted  by  parol  to  sell  real  estate 
and  those  interested  do  not  think  it  expedient  to  plead  the 
statute  requiring  contracts  to  be  in  writing  to  enable  the  pur- 
chaser to  recover  the  real  estate  agreed  to  be  sold. 

F.  Partition 

When  in  proceedings  in  partition  in  equity  it  shall  appear  that 
real  estate  cannot  be  divided  without  prejudice  to  the  interest 
of  the  owners 

Trustees,  guardians,  committees,  married  women  and  corporations 
to  make  and  take  conveyances  without  public  sale  to  perfect 
partition 

G.  Exchange, 

Trustees,  guardians,  committees,  married  women  and  corporations 
to  make  and  take  conveyances,  to  square  and  adjust  lines  be- 
tween adjoining  owners  without  public  sale 
H.   Trustees,  guardians,  committees,  married  women  and  corporations 

To  purchase  real  estate  when  necessary  to  protect  any  security  or 

rent  held  on  property  exposed  to  judicial  sale. 

To  join  with  other  undivided  interests  in  making  and  taking  deeds 
without  public  sale,  to  change  in  part  or  in  whole  the  route  or  lo- 
cation of  any  right  of  way  or  passage  existing  over  and  upon  ad- 
joining or  other  lands.  Security  in  the  discretion  of  the  court. 
(Act  of  April  18,  1864,  P.  L.  462,  Sec.  i.) 

To  purchase  other  real  estate  when  needful  (adjoining)  to  that  al- 
ready owned  by  any  such  party  or  useful  to  the  business  there- 
upon carried  on. 

I  Trustees  of  religious  societies,  corporations  or  church  organizations  to 
sell  to  associations  or  corporation  for  exclusive  purpose  of  a  ceme- 
tery or  place  of  sepulchre  for  the  dead.  (Act  of  March  24,  1877, 
P.  L.  39,  Sec.  I.) 


§  15  ACT  APPLIES  ONLY  TO  REAL  PROPERTY.  21 

the  cases  hereinafter  described.19  The  only  difficulty  was  where 
the  title  was  derived  partly  by  deed  and  partly  by  will  or  descent. 
It  was  accordingly  provided  by  the  Act  of  April  27,  i855,20  that 
in  such  case  either  the  Common  Pleas  or  the  Orphans'  Court 
might  take  jurisdiction,21  and  by  the  Act  of  April  21,  1856,"  sales 
of  real  estate  of  lunatics,  in  the  case  where  the  title  was  derived 
partly  by  deed  and  partly  by  will,  were  confirmed.  The  decree 
of  the  Orphans'  Court  confirming  a  sale  under  the  Price  Act  is 
conclusive  on  the  Common  Pleas.2*  Both  courts  would  hardly 
entertain  jurisdiction  of  the  same  proceeding,  and  should  such 
a  case  arise,  the  court  to  which  the  second  application  was  made 
would  very  probably  refuse  to  entertain  the  petition.24* 

Jurisdiction  is  Only  as  to  Eeal  Property. 
§  15.     The  jurisdiction  under  the  act  is  conferred  solely  as 

J.    Persons  presumed  to  be  deceased 

Whenever  the  owner  of  real  estate  may  have  been  absent  and  un- 
heard from  for  seven  years,  under  those  circumstances  from 
which  the  law  will  presume  his  or  her  decease. 

K.  Trustees,  treasurer  or  other  proper  officers  of  a  church,  congregation, 
presbytery  or  other  church  organization,  to  sell  real  estate  used 
as  a  burying  ground.  Act  of  May  23,  1887,  P.  L,.  168,  C.  P. 

(19)  This  clause  may  confine  the  jurisdiction  to  cases  of  title  acquired 
by  gift    By  a  subsequent  clause  the  courts  may  enter  a  decree  where  real 
estate  shall  have  been  purchased  and  held  by  any  person  acting  in  a  trust 
or  fiduciary  capacity.     See  §  56,  post.     In  the  following  cases  the  juris- 
diction was  in  the  Common  Pleas:    Carswell's  Pet.,  I  Phila,  521   (1854), 
s.  c.  12  L.  I.  14;    Swift  v.  Harbison- Walker  R.  Co.,  228  Pa.  584   (1910), 
Owens'  Pet.,  3  D.  R.  328  (1894)     In  the  following  cases  the  jurisdiction 
was  in  the  Orphans  Court:    Morrison  v.  Nellis,  115  Pa.  41   (1887),  s.  c. 
19  W.  N.  C.  20,  44  L.  I.  187,  34  Pitts.  Lg.  274,  14  Lane.  L.  R.  968. 

(20)  P.  L.  368,  Sec.  5. 

(21)  Jurisdiction  under  this  act  in  the  following  cases:  Reed  v.  Palmer, 
53  Pa.  379   (1867),  deed  and  will,  Common  Pleas.     Goddard's  Est,  198 
Pa.  454  (1901),  aff.  9  D.  R.  703  (1900),  deed  and  will,  Orphans'  Court. 
Fell's  Est.,  14  Phila,  248  (1880),  s.  c.  9  W.  N.  C.  382,  38  L.  I.  6.     In 
Sharp's  Pet.,  6  Phila.  153   (1866),  s.  c.  23  L.  I.  412,  the  petition  in  the 
case  of  a  testamentary  trust  was  presented  in  the  Court  of   Common 
Pleas.     The  petition  was  dismissed  on  other  grounds,  and  question  of 
jurisdiction  was  not  discussed. 

(22)  P.  L.  486,  Sec. 

(24)  Mercer  Home  v.  Fisher,  162  Pa.  239  (1804). 

(243)  bee  §  203,  post,  as  to  orphans'  court  sales.    See  Stadelman's  Est., 
O.  C.  Phila.  Co.,  Oct.  Term  1913,  No.  742,  not  reported. 


22  JURISDICTION  AS  RESPECTS  SITUS  OF  LAND.  §  16 

to  real  property,  and  the  courts  have  no  power  under  its  pro- 
visions to  make  an  order  concerning  personal  property.  This 
is  so  clear  that  no  question  as  to  it  has  ever  been  raised.  It  does 
not  appear  25  that  the  jurisdiction  of  the  court  extends  to  the 
equitable  interest  of  the  cestui  que  trust.  If  such  equitable  in- 
terest is  considered  as  personal  property,  as  it  sometimes  is,  we 
have  another  reason  why  a  decree  will  not  be  made  in  such  cases. 

Jurisdiction  as  Respects  Situs  of  the  Land. 

§  16.  In  the  case  of  proceedings  under  the  Price  Act,  it  will 
be  found  that  the  condition  of  the  estate  is  immaterial.  The  act 
is  simply  designed  to  remove  obstacles  to  the  alienation  of  prop- 
erty and  provide  means  by  which,  in  the  cases  specified,  where 
there  is  some  defect  preventing  the  transfer  of  the  title,  the  court 
may,  in  spite  of  the  difficulty,  authorize  a  sale,  etc.  The  propriety 
of  the  sale,  etc.,  therefore  depends  entirely  on  the  condition  of 
the  title  to  the  land,  and  the  advantage  to  the  parties  interested 
of  that  particular  sale,  etc.,  with  reference  to  the  land  in  ques- 
tion. These  questions  are  to  be  determined  solely  by  the  court 
having  jurisdiction  over  the  land.  Indeed  the  jurisdiction  is 
clearly  confined  to  the  court  of  the  county  where  the  lands  lie 
by  the  words  of  the  act  providing  in  Sec.  I,  "that  any  such  court 
in  the  county  where  the  land  shall  be  situate  shall  be  of  opinion," 
etc.  It  is  not  necessary,  therefore,  in  the  case  of  a  proceeding 
under  the  act,  to  make  application  anywhere  except  in  the  court 
of  the  county  where  the  land  lies. 

In  the  case,  however,  of  proceedings  for  a  sale  for  the  pay- 
ment of  debts  where  the  orphans'  court  of  another  county  has 
jurisdiction  of  the  accounts,  then  the  two  courts  must  concur 
for  the  reason  that  the  necessity  of  the  sale  under  the  terms  of 
the  statute  depend  on  the  condition  of  the  decedent's  estate,  and 
the  only  court  which  can  inquire  into  that,  is  the  court  having 
jurisdiction  over  the  accounts,  and  the  same  is  true  of  many 
cases  of  proceedings  by  executors  and  guardians. 

Where  the  court  authorizes  trustees  to  buy  land  in  another 
county,  it  is  not  necessary  to  apply  to  the  court  of  the  county 
where  the  land  lies  because  the  owner  of  the  land  may  sell  to 
whom  he  pleases,  and  the  court  of  his  county  has  no  jurisdiction 
over  him.  The  only  question  involved  is  one  of  a  propriety  of 

(25)  See  §  140,  post. 


§§  1 7- 1 8        CONSENT,  JURISDICTION  BY,  NOTICE.  23 

investment  determined  solely  by  the  court  having  jurisdiction 
over  the  accounts  of  the  trust.26 

Consent,  No  Jurisdiction  By. 

§  17.  It  may  be  added  that  jurisdiction  under  the  act  cannot 
be  conferred  by  consent.  Thus,  in  Crawford's  Estate,27  the  court 
decided  that  the  consent  of  the  heirs  would  not  validate  a  sale 
to  relieve  from  the  lien  of  decedent's  debts  when  the  sale  was 
not  confirmed  within  two  years. 27a 

General  Discussion  of  Notice 

§  18.  The  clause  requiring  notice  to  be  given  to  all  parties 
is  essential  to  the  constitutionality  of  the  act.28  This  section 
of  the  statute  speaks  for  itself  and  requires  very  little  comment. 
Where  there  is  no  opposition  to  the  proceedings  it  is  more  ex- 
pedient to  have  all  parties  join  in  the  petition  which  obviates  the 
necessity  of  preparing  an  answer.  In  other  cases  service  must  be 
made  personally,  which  may  be  in  any  part  of  the  United  States 
and  the  territories  thereof,  or  if  no  personal  service  can  be  made, 

(26)  For  such  a  case  see  Derr's  Est.,  203  Pa.  96  (1902).    Aff.  10  Kulp 
438  (1901). 

(27)  221  Pa.  131  (1908). 

(273)  Willard's  App.,  65  Pa.  265  (1870)  ;  in  this  case  the  court  refused 
to  entertain  jurisdiction  of  a  petition  to  construe  the  terms  of  a  will,  the 
decree  of  the  court  below  being  reversed  and  petition  dismissed.  See  §  253, 
post,  as  to  mistake. 

(28)  The  provisions  as  to  notice  in  Sec.  3  are  as  follows:  "If  all  proper 
parties  shall  not  have  voluntarily  appeared  as  petitioners  or  respondents, 
the  court  shall  fix  a  day  for  parties  to  appear,  and  cause  a  citation  to  be 
served  on  all  persons  in  being  who  shall  not  have  appeared,  and  who  shall 
have  any  present  or  expectant  interest  in  the  premises,  warning  them  to 
appear,  and  that  they  shall  be  heard  on  the  day  designed,  and  for  those 
who   cannot   otherwise   be   served,    cause   advertisement   to   be    made   in 
manner  most  likely  to  afford  notice,  and  services  made  in  any  part  of  the 
United  States  and  the  territories  thereof,  with  oath  or  affirmation  of  the 
fact,  taken  before  any  judge  or  justice  of  the  peace,  and  filed  of  record, 
shall  be  good  service,  and  guardians  shall  be  served  and  appear  for  their 
wards,  and  if  minors  shall  have  no  guardian,  the  court  shall  appoint  a 
guardian  for  them ;    committees  shall  be  served  and  appear  for  lunatics 
and  habitual  drunkards,  and  husbands  shall  be  served  and  appear  with 
their  wives,  except  husbands  who  shall  have  abandoned  their  wives  for 
two  years,  or  have  been  absent  and  unheard  from  for  seven  years,  and  if 
parties  make  default  in  appearing,  the  court,  after  an  investigation  of  the 
facts,  may  proceed  to  make  a  decree  in  the  premises." 


24  NOTICE  TO  MARRIED  WOMEN.  §  19 

advertisement  shall  be  made  in  manner  most  likely  to  afford  notice 
that  is  under  the  approval  of  the  court. 

Notice  must  be  given  to  all  parties  in  interest  so  that  they  may  be 
heard  as  to  the  expediency  of  making  the  sale,  etc.,  that  is,  whether 
it  is  to  the  interest  and  advantage  of  all  concerned  that  the  prop- 
erty be  sold,  etc.  No  one  having  a  present  or  expectant  interest  will 
be  affected  by  the  proceedings  under  the  act  unless  notified.29 
Where  the  record  is  lost,  it  will  be  presumed  thirty  years  after 
the  sale  that  notice  had  been  given  to  the  guardian  of  a  minor 
having  a  contingent  interest.30  Where  all  of  the  heirs  and  par- 
ties in  interest  are  made  parties  except  a  non-resident  heir  not 
heard  from  for  thirteen  years,  and  upon  whom  service  by  adver- 
tisement has  been  made  by  order  of  court,  the  court  will  make 
a  decree  authorizing  the  sale  and  the  title  will  be  good.31 

Further  questions  as  to  notice  will  be  discussed  under  the 
separate  headings.32 

Notice  to  Harried  Women. 

§  19.  The  clause  providing  that  husbands  shall  be  served  and 
appear  with  their  wives  does  not  appear  to  have  been  construed 
or  to  have  received  much  attention  in  practice.  The  phrase  when 
strictly  construed  probably  means  that  in  every  case  where  a 
married  woman  is  a  party  to  proceedings  under  the  Price  Act 
her  husband  must  be  served  and  appear  with  her  unless  he  shall 
have  abandoned  his  wife  for  two  years  or  been  absent  and  un- 
heard from  for  seven  years.  Therefore,  when  she  signs  an  ap- 
proval of  a  petition  under  an  act  her  husband  should  join  in 
unless  he  comes  within  the  exceptions  mentioned.  The  clause 
on  the  other  hand  may  be  construed  to  mean  that  the  husband 
is  to  be  served  and  appear  only  in  the  case  where  the  proceed- 
ings are  taken  under  the  act  as  to  the  title  of  a  married  woman 
to  free  her  from  a  disability  arising  out  of  the  coverture.  In 
the  absence  of  any  authority,  no  statement  can  be  ventured,  and 

(29)  Smith  v.  Townsend,  32  Pa.  434  (1859).  See  Collateral  Attack, 
§  240,  post. 

(50)  Smith  v.  Schwarz,  209  Pa.  79  (1904). 

(31)  Freker  v.  Berg,  193  Pa.  442  (1899). 

(32)  See  §  240,  post,  as  to  Collateral  Attacks,  §  97,  post,  as  to  Contingent 
Remainders,  §  169,  post,  as  to  Persons  Absent  and  Unheard  from  for  Seven 
Years,  §  63,  post,  as  to  Minors,  §  138,  post,  as  to  cestui  que  trusts. 


§§  20-21      EXISTING  LEGISLATION.    RATIFICATION.  25 

it  therefore  seems  desirable  to  follow  the  safe  practice  and  have 
the  husband  join  in  every  case. 

The  Act  Construed  with  Existing  Legislation. 

§  20.  It  so  happens  that  many  provisions  of  the  statute  are 
coterminous  with  or  overlap  previous  statutes.33  Particularly  is 
this  so  with  respect  to  the  case  of  the  sale  of  the  interest  of  a 
minor,  specific  performance  of  decedent's  parol  contracts,  and 
no  small  confusion  has  been  caused  by  these  circumstances.  The 
distinction  between  these  acts  will  be  pointed  out  at  the  proper 
place.34 

So  far  as  the  acts  relating  to  the  sale  for  payment  of  debts 
is  concerned,  the  provision  in  the  Price  Act  relating  to  the  lien 
of  decedent's  debts  is  entirely  different  from  the  other  acts,  and 
there  is  no  overlapping,  in  this  respect  differing  from  the  case 
of  the  sale  of  the  interest  of  a  minor.35 

Court  may  Ratify  that  which  it  could  Authorize  in  Advance. 

§  21.  The  Price  Act  provides  that  the  court  may  decree  such 
sale,  etc.  This  would  clearly  embrace  a  decree  ratifying  a  sale, 
etc.,  etc.,  already  made  as  well  as  an  order  for  a  sale,  etc.,  in  the 
future.  If  any  doubt  existed  on  this  point,  it  has  been  set  at 
rest  by  the  Act  of  April  13,  i854.36  which  provides  that  all  cases 

(33)  The  provision  in  the  statute  as  to  its  construction  with  respect  to 
existing  legislation  is  as  follows:    §2  "Provided,  that  nothing  in  this  act 
contained  shall  be  taken  to  repeal  or  impair  the  authority  of  any  act  of 
assembly,  general  or  private,  authorizing  the  sale  of  real  estate  by  decree 
of  court  or  otherwise,  nor  to  affect  or  impair  any  right  or  powers  other- 
wise existing  in  any  persons  or  corporations  to  sell,  mortgage,  lease,  or  let 
on  ground  rent,  any  real  estate. 

(34)  See  §  64,  post,  as  to  minority.     See  §  152,  post,  as  to  specific  per- 
formance of  decedent's  contracts. 

(35)  See  §  115,  post,  as  to  lien  of  decedent's  debts. 

(36)  P.  L.  368,  Sec.  3.    "That  in  all  cases  wherein  any  of  the  courts  of 
this  Commonwealth  might  have  authorized  any  sale  or  conveyance,  or 
letting  on  ground  rent  or  otherwise,  and  such  sale,  conveyance  or  letting, 
may  have  been  made  without  the  leave  of  such  court,  it  shall  be  lawful  for 
such  court,  if  approving  of  such  sale  or  conveyance  or  letting,  to  ap- 
prove, ratify  and  confirm  the  same,  with  the  same  effect  as  if  such  decree 
had  preceded  such  sale,  conveyance  or  letting."     This  act  applies  to  all 
orphans'  court  sales  and  is  not  confined  to  sales  under  the  Price  Act, 
Donnelly  v.  Byers,  234  Pa.  339  (1912). 

3 


26  UNDIVIDED  OWNERSHIP.  §  22 

where  any  court  might  have  authorized  any  sale,  conveyance,  etc., 
and  such  sale,  etc.,  shall  have  been  made  without  leave  of  court, 
the  court  may,  if  approving  the  same,  ratify  with  the  same  effect 
as  if  such  decree  had  preceded  such  sale,  etc.  It  was  the  law 
before  the  Act  of  1854  that  the  orphans'  court  could  ratify  and 
confirm  afterwards  what  it  could  authorize  in  advance.37  The 
practice  on  this  point  is  now  settled  beyond  a  doubt.38 

Jurisdiction  Extends  to-  Undivided  Ownership. 

§  22.  The  jurisdiction  of  the  court,  by  the  express  provisions 
of  the  act,  is  to  be  exercised  whether  such  ownership  or  interest 
shall  be  held  or  enjoyed  in  severalty,  joint  tenancy,  coparcenary, 
or  in  common  with  others.  Under  this  clause,  the  jurisdiction 
of  the  court  extends  to  the  case  where  the  holder  of  any  undi- 
vided interest  in  property  is  subject  to  any  of  the  legal  disabilities 
mentioned  in  the  act.  This  clause,  however,  does  not,  it  seems, 
authorize  one  undivided  interest  to  compel  another  undivided 
interest  to  join  in  the  sale  merely  because  the  other  undivided 

(37)  Bell's  App.,  66  Pa.  498  (1871),  semble;    Mussleman's  App.,  65  Pa. 
480  (1870).    In  this  case  there  was  a  bill  in  equity  in  the  common  pleas 
for  specific  performance  of  the  executor's  sale  made  without  authority 
of  the  orphans'  court,  but  which  should  have  been  approved  by  them. 
A  demurrer  was  sustained  without  prejudice  to  the  right  to  proceed  in 
the  orphans'  court,  with  a  dictum  that  that  court  could  ratify  on  proceedings 
to  confirm  the  sale. 

(38)  Bowker's  Est.,  12  Phila.  161  (1878),  s.  c.  35  L.  I.  456.    The  petition 
of  purchaser  to  have  a  sale  vacated  refused,  the  court  having  power  under 
the  Act  of  April  13,  1854,  P.  L.  368,  Sec.  3,  to  validate  the  sale  although 
minor  irregularities  therein.     Sale  also  confirmed  after  made  under  the 
act  itself  or  its  supplement  of  1854,  in  Charlton's  Est,  12  Phila.  102,  s.  c. 
35  L.  I.  194  (1878).  McCaffrey  v.  Gibney,  223  Pa.  368  (1909)  ;    Sheetz's 
Est,  29  Pa.  C.  C.  14  (1903),  s.  c.  12  D.  R.  372,  17  York  44,  apparently 
a  petition  by  a  minor  to  restrain  a  sale,  report  obscure.     In  Donnelly  v. 
Byers,  234  Pa.  339   (1912),  there  was  a  sale  under  a  power  which  did 
not   divest  the  lien  of  decedent's   debts,  which  was   ratified  by  a  sub- 
sequent order  for  sale   for  payment  of  debts  rested  on  the  provisions 
of  the  Act  of  1854.     Query:    Why  was  the  Price  Act  not  resorted  to? 
See  §  128,  post.    For  a  case  of  a  mortgage  subsequently  ratified,  see  Bur- 
ton's Est,  16  Pa.  C.  C.  289  (1895),  s.  c.  4  D.  R.  106    Ashman,  J.,  refers 
to  Act  of  April  18,   1853,  §  3,  probably  a  misprint  for  April  13,   1854. 
Corr's  Est.,  29  Pa.  C.  C.  276,  s.  c.  12  D.  R.  788  (1903),  Confer  Hubley's 
Est,  16  Phila.  327  (1884),  s.  c.  41  L.  I.  66;    Burton's  Est,  16  Pa.  C.  C. 
289   (1895),  s-  c.  4  D.  R.  106,  mortgage  subsequently  ratified. 


§§  23-24  TITLE  BY  PURCHASE.    SUPERFLUOUS  PROVISIONS.         27 

interest  is  under  one  of  the  legal  disabilities,  etc.  39    The  remedy 
in  such  a  case  is  by  proceedings  in  partition. 

If,  however,  all  the  undivided  interests  are  subject  to  the  same 
disability,  as  where  they  are  all  subject  to  the  lien  of  decedent's 
debts,  it  seems  that  the  court  may  compel  an  unwilling  owner  to 
join  in  the  sale.40  It  is  important  furthermore  to  remember  that 
the  act  provides*1  that  no  such  private  sale,  leasing  or  letting  on 
ground  rent  of  an  undivided  interest  shall  be  upon  terms  or  at 
rates  less  favorable  than  others  who  of  competent  ability  to  con- 
tract and  uniting  in  the  sale  of  undivided  interests  shall  accept. 
It  is  therefore  necessary  under  this  clause,  in  all  cases  of  a  private 
sale  of  undivided  interests,  for  it  to  appear,  if  other  parties  are 
joining  in  the  sale,  that  those  who  are  sui  juris  are  not  receiving  a 
larger  price. 

Where  a  Title  to  Property  is  Acquired  by  Purchase. 

§23.  If  it  should  be  supposed  that  the  language  in  the  first 
section  of  the  act  would  be  construed  to  exclude  the  juris- 
diction of  the  court  from  the  case  where  the  property  was  pur- 
chased by  any  fiduciary  mentioned  in  the  act,  such  doubt  will 
disappear  when  we  refer  to  the  language  in  a  subsequent  part 
of  the  act,42  providing  that  the  jurisdiction  shall  be  exercised 
"when  real  estate  shall  have  been  purchased  and  be  held  by 
any  person  acting  in  a  trust  or  fiduciary  capacity."  This  lan- 
guage seems  to  plainly  extend  the  jurisdiction  as  to  trusts,  at 
least  to  all  cases  where  the  trustees  shall  have  bought  property 
after  the  trust  was  created. 

Superfluous  Provisions  of  the  Act. 

§  24.  It  seems  clear  that  it  will  be  entirely  unnecessary  to 
authorize  any  disposition  by  the  court  in  a  case  where  there  is 
ample  power  independently  of  the  statute  to  make  the  proposed 
conveyance,  etc.  Any  statutory  provision  in  such  a  case  would 
be  entirely  superfluous.  There  are,  however,  several  clauses  in 
the  Price  Act  which  seem  to  come  under  this  category,  such, 

(39)  See  remarks  of  Trunkey,  J.,  in  Spencer  v.  Jennings,  123  Pa.  184 
(1888),  at  195-196.    See  §  12,  ante. 

(40)  Price  on  the  act  for  the  sale  of  real  estate  (1874)  p.  121,  122. 

(41)  In  Sec.  4. 

(42)  See  §  56.  post. 


28  RETROACTIVE:  APPLICATION,  §  243 

for  instance,  as  the  clause  relating  to  corporations,43  relating  to 
purchase  of  real  estate,4*  to  leases,45  etc.  These  will  be  noticed 
in  the  proper  place. 

Retroactive  Application  of  the  Act. 

§  24a.  Cases  sometimes  arise  where  the  title  has  been  ac- 
quired by  descent  or  will  prior  to  April  18,  1853.  The  question 
then  arises  whether  such  a  case  is  within  the  provisions  of  the 
act.  It  seems  clear  that  it  is  because  that  act  provides  in  Sec.  I 
that  in  all  cases  where  real  estate  shall  have  been  acquired  by 
descent  or  last  will,  etc.,  the  jurisdiction  of  the  court  shall  attach.48 
It  seems,  however,  that  since  the  act  in  Sec.  2  provides,  in 
enumerating  the  cases  where  the  court  is  said  to  have  jurisdic- 
tion, that  such  sale,  mortgaging,  leasing,  etc.,  may  be  decreed 
whenever  real  estate  shall  be  held  for,  etc.,  that  there  is  room  to 
argue  that  although  the  act  applies  to  titles  vesting  before  it  was 
passed,  yet  the  circumstances  in  which  the  court  is  to  have  juris- 
diction must  have  arisen  after  April  18,  1853.  No  case  has  been 
found  on  this  point.  In  the  absence  of  any  authority  no  state- 
ment of  the  law  can  be  ventured.47 

(43)  See  §  83,  post. 

(44)  See  §  56,  post. 

(45)  See  §  48,  post. 

(46)  In  Owens'  Est,  15  Pa.  C.  C.  196  (1894),  s.  c.  3  D.  R.  331,  the  court 
took  jurisdiction  under  the  act  as  to  a  trust  created  in  1844.    See  Hinkson  v. 
Lees,  181  Pa.  225  ( 1897) . 

(47)  §  9.  relating  to  accumulations,  is  expressly  confined  to  limitations 
under  deeds  or  wills  made  after  the  passage  of  the  act. 


§  25  GENERAL  JURISDICTIONS,  FACTS.  29 


CHAPTER  2. 

General  Jurisdictional  Facts. 

Preliminary    §  25 

To  the  interest  and  advantage 

Is  a  question  of   fact   §  26 

Case  of  a  mortgage    §  27 

As  between  life  tenant  and  remaindermen  §  28 

Reasons  why  to  interest  and  advantage  §  29 

Sale  of  unproductive  real  estate   for  improvements  and  re- 
pairs      §  30 

Urgent  necessity  not  required   ; §  31 

Without  prejudice  to  trust  or  charity  §  32 

Without  violation  of  any  law  conferring  an  immunity  or  exemp- 
tion from  alienation 

Preliminary  discussion   §  33 

Cases  discussed 

Burton's  Appeal   §  34 

Heffner's  Appeal   §  35 

Mercer  Home — Fisher's  Appeal   §  36 

Funck's  Estate    §  37 

Law  as  to  immunity  from  alienation   §  38 

Effect  of  prohibition  against  alienation  as  to  a  church  §  39 

Preliminary. 

§  25.  It  is  provided  that  the  court  shall  be  of  the  opinion  that 
the  sale  etc.,  is  (a)  to  the  interest  and  advantage  of  those  inter- 
ested, and  (b)  may  be  made  without  injury  or  prejudice  to  any 
trust,  charity,  etc.,  for  which  property  may  be  held,  (c)  may 
be  done  without  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation.1  The  require- 

(i)  The  words  of  the  act  are  as  follows:  "Provided,  That  any  such 
court  in  the  county  where  the  premises  shall  be  situated,  shall  be  of  the 
opinion  that  it  is  for  the  interest  and  advantage  of  those  interested  there- 
in, that  the  same  should  be  sold,  mortgaged,  leased  or  let  on  ground  rent, 
and  may  be  done  without  injury  or  prejudice  to  any  trust,  charity,  or 
purpose  for  which  the  same  shall  be  held;  and  provided,  That  the  same 
may  be  done  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation."  It  is  apparently  not  neces- 
sary, from  the  remarks  of  Mitchell,  J.,  in  Brock  v.  Steel  Co.,  203  Pa.  249 
at  253  (1902),  to  insert  in  the  petition  and  decree  the  finding  of  the  court 
in  the  above  words.  It  is,  however,  much  better  practice  to  do  so.  See 
as  to  this  appendix,  B. 


30  To  INTEREST  AND  ADVANTAGE.  §  26 

ment  that  no  law  conferring  immunity  or  exemption  from  aliena- 
tion shall  be  infringed  obviously  applies  only  to  the  case  of  a  sale, 
mortgage,  or  conveyance  on  ground  rent.  There  does  not  appear 
to  be  anything  in  the  act  to  show  that  such  a  requirement  must  be 
found  in  the  case  of  an  exchange,  lease,  squaring  and  adjusting 
adjoining  lines,  changing  location  of  right  of  way  over  adjoining 
ground,  partition,  specific  performance  of  decedent's  contracts, 
purchase  of  real  estate,  except  in  so  far  as  the  provision  we  have 
referred  to  may  be  considered  as  applying  to  all  subsequent  cases 
in  the  act,  although  not  specifically  referred  to. 

Whether  to  the  Interest  and  Advantage  is  a  Question  of  Fact. 

§  26.  The  sale,  mortgage,  etc.,  must  be  to  the  interest  and 
advantage  of  those  interested  therein.  This  is  a  question  of  fact 
to  be  determined  by  the  court  having  jurisdiction  of  the  proceed- 
ings.2 The  duty  of  investigation  is  in  the  court,  and  the  title 
of  an  innocent  purchaser  does  not  depend  upon  the  fidelity  or 
sound  judgment  of  the  judges  making  the  decree.3  Like  other 
similar  questions  of  fact  to  be  determined  by  the  court  below, 
the  general  rule  is  that  the  Supreme  Court  will  not  reverse 
findings  of  fact  unless  there  is  clear  error.* 

Where  the  court  has  entered  the  decree  on  the  ground  that 
it  is  to  the  interest  and  advantage,  the  question  is  res  judicata, 
and  a  party  in  interest  who  had  notice  cannot  attack  the  de- 
cree on  the  ground  that  it  is  not  to  his  interest  and  advantage 
to  have  the  decree  made.5 

(2)  The  court  may  appoint  someone  to  inquire  into  the  question  of  the 
expediency,  as  was  done  in  Grenawalt's  App.,  37  Pa.  95  (1860)  s.  c.  Luz. 
L.  Obs.  243.     Costs  of  reference  should  be  paid  out  of  principal,  Lee's 
Est,  18  Phila.  2  (1885),  s.  c.  42  L.  I.  488. 

(3)  Trunkey,  J.,  in  Morrison  v.  Nellis,  115  Pa.  41  (1886). 

(4)  Funck's  Est.,  1 6  Super.  Ct.  434   (1901)  ;    Morrison  v.  Nellis,   115 
Pa.  41   (1887),  s.  c.  19  W.  N.  C.  20,  44  L.  I.  187,  34  Pitts.  L.  J.  274,  14 
Lane.  L.  R.  96.     But  in  Smith's  Est.,  207  Pa.  604  (1904),  the  Supreme 
Court,  in  an  opinion  by  Meztrezat,  J.,  made  an  elaborate  discussion  of  the 
facts  concerning  the  expediency  of  the  sale,  although  affirming  the  court 
below,  a  discussion  which  seems  unnecessary  under  the  rule  we  have  re- 
ferred to. 

(5)  Thomas's  Est,  II  D.  R.  290   (1902),  petition  to  vacate  decree  in 
partition  dismissed.    Sheetz's  Est.,  12  D.  R.  372  (1903),  s.  c.  29  Pa.  C.  C.  14, 
17  York  44,  petition  of  a  minor  who  had  come  of  age,  to  vacate  sale, 
joined  in  by  his  guardian  under  a  decree  entered  under  the  Act  of  1853. 


§§  27-28-29        To  INTEREST  AND  ADVANTAGE.  31 

To  the  Interest  and  Advantage  in  Case  of  a  Mortgage. 

§  27.  Where  there  is  an  application  for  permission  to  mort- 
gage, the  advisability  of  granting  the  petition  may  involve  a 
consideration  of  the  conflicting  rights  of  the  life  tenant  and  the 
remaindermen,  and  the  decree  authorizing  the  mortgage  must 
be  so  drawn  that  the  different  rights  of  the  parties  are  ad- 
justed.6 

As  Between  Life  Tenant  and  Remaindermen. 

§  28.  As  between  life  tenant  and  remaindermen,  the  question 
of  revenue  arises  and  ordinarily  the  remaindermen  cannot  ob- 
ject on  the  ground  that  the  property  may  increase  in  value  in 
the  future,  as  that  is  a  mere  speculative  possibility.  It  is  a 
question  of  price  for  the  remaindermen  and  a  question  of  rev- 
enue for  the  life  tenant. 

Reasons  Why  to  the  Interest  and  Advantage. 
§  29.  There  must  be  a  reason  why  the  sale,  etc.,  is  to  the 
interest  and  advantage  of  the  parties.  It  will  not  do  to  aver  in 
the  petition  merely  that  it  is  to  the  interest  and  advantage  of 
the  parties  in  interest  to  make  the  sale  or  mortgage,  etc.  Some 
particular  circumstances  affecting  the  property  in  question  must 
be  shown,  which  will  make  it  advantageous  to  the  parties  in  in- 
terest for  the  court  to  act.  These  reasons  must  exist  in  conjunc- 
tion with  some  of  the  cases  specified  in  the  act  as  those  in  which 
the  court  has  jurisdiction.  Thus  the  circumstance  that  the  title 
is  held  by  a  minor  will  give  the  court  jurisdiction,  but  there 
must  be  a  reason  why  it  is  advantageous  to  the  minor  to  have 
the  title  sold,  etc.  The  fact  that  property  is  subject  to  con- 
tingent remainders  will  give  the  court  jurisdiction  on  petition 
of  the  life  tenant  or  other  party  in  interest  to  order  a  sale,  but 
the  life  tenant  here  again  must  in  the  petition  set  out  reasons 
why  the  sale  is  advantageous  to  all  parties  in  interest.  In  most 
of  the  cases  of  proceedings  under  the  act,  the  application  is 
ex  parte,  and  perhaps  in  the  majority  of  instances  all  parties 

The  petition  was  dismissed.  It  appeared  that  an  attempt  had  been  made 
on  behalf  of  the  petitioner  to  restrain  the  sale,  the  petition  in  which  case 
had  been  refused  before  the  decree  confirming  the  sale  was  entered. 

(6)  For  such  a  case  see  Stevenson's  Est,  4  Super.  Ct.  46  (1897),  affirm. 
in  186  Pa.  262  (1898),  reversing  17  Pa.  C.  C.  312,  s.  c.  5  D.  R.  5  (1895). 
See  §  46,  post,  for  a  statement  of  the  case. 


32  REASONS  WHY  TO  INTEREST  AND  ADVANTAGE.        §  29 

in  interest  join  in  the  petition  or  have  notice  thereof.  Where 
all  these  parties  are  sui  juris,  their  wishes  as  to  the  disposition 
of  the  property  are  to  be  very  highly  regarded  because  they  are 
practically  the  owners  thereof.7 

Where  there  is  an  opposition  to  the  petition,  then  it  becomes 
incumbent  upon  the  petitioner  to  show  by  clear  and  satisfactory 
evidence  that  the  disposition  prayed  for  is  advisable.8  It  may 
also  be  observed  here,  that  where  the  application  is  by  a  life 
tenant  and  the  objection  is  by  the  remaindermen,  they  cannot 
urge  as  a  reason  why  the  sale  should  not  take  place  the  fact 
that  the  property  will  be  likely  to  increase  in  value  in  the  near  fu- 
ture.9 We  have  included  in  the  note  a  number  of  cases  where  the 
court  has  commented  on  the  reasons  for  the  disposition  prayed 
for.10 

(7)  "As  a  rule  the  judgment  of  the  owners  of  property  as  to  what  is 
most  to  their  advantage  when  they  are  of  mature  age  and  under  no  dis- 
ability is  a  safer  guide  than  the  theoretical  opinions  of  persons  no  mat- 
ter how  skilled  who  have  no  personal  interest,"  Penrose,  J.,  in  Miller's 
Est,  16  Pa.  C.  C.  449  (1895)  at  449. 

(8)  Sharp's  Est.,  6  Phila.  153   (1866),  s.  c.  23  L.  I.  412. 

(9)  In  McAlpin's  Est.,  i  Phila.  440  (1852)  an  act  of  assembly  had  been 
passed  authorizing  the  executors  to  sell  certain  real  estate.     It  appeared 
that  the  property  was  very  much  dilapidated  and  that  some  of  the  parties 
interested  were  unable  to  pay  their  share  of  the  costs  and  repairs  and 
that  the  price  offered  was  fair  and  reasonable.    The  court  held  that  the 
sale  could  be  decreed  notwithstanding  the  objection  of  some  of  the  par- 
ties in  interest  that  the  property  would  probably  increase  in  value  in  the 
future.     This  case  is  material  because  under  the  terms  of  the  act  the 
court  was  the  judge  of  the  propriety  of  the  sale,  and  while,  therefore,  it 
was  a  special  act  of  assembly,  it  is  similar  to  the  jurisdiction  vested  under 
the  Price  Act. 

(10)  In  the  following  cases  the  reasons  indicated  have  been  held  suf- 
ficient to  authorize  the  particular  disposition  prayed  for: 

Sales — Trustees.  That  the  real  estate,  subject  to  a  ground  rent,  was 
in  a  dilapidated  condition  and  would  require  a  large  expenditure  to  make 
it  tenantable,  Brown's  App.,  68  Pa.  53  (1871).  In  the  case  of  a  lot  of 
vacant  ground  of  several  acres,  (i)  that  the  price  offered  was  a  large 
one,  (2)  that  the  expense  of  maintaining  the  tract  made  it  advisable  to 
sell,  as  against  objections  of  remaindermen,  (i)  that  the  testator  had 
directed  that  this  tract  remain  intact,  (2)  that  the  time  would  come  when 
it  would  be  possible  to  make  it  more  valuable  by  buildings  and  other  im- 
provements, Rhoades's  Est.,  4  W.  N.  C.  527  (1877).  That  the  property 
had  become  dilapidated,  comparatively  unproductive  and  burdensome  to 
retain,  that  the  price  offered  was  better  than  could  be  obtained  at  public 
sale;  petition  was  by  executor;  not  clear  what  the  trust  was  as  words 
of  will  were  not  given  in  the  report,  Freker  v.  Berg,  193  Pa.  442  (1899). 


§  29        REASONS  WHY  TO  INTEREST  AND  ADVANTAGE.  33 

In  the  case  of  an  undivided  interest  in  an  iron  ore  mine,  (i)  that  by 
changes  in  ownership  the  petitioners  were  likely  to  lose  control  of  the 
price  of  ore,  (2)  differences  in  mode  of  doing  business  had  greatly  di- 
minished the  power  of  the  petitioners  over  the  mines  and  sale  of  the  ore, 
(3)  that  the  petitioners  would  soon  lose  a  valuable  control  over  the  price 
of  ore  exercised  indirectly  through  other  furnaces,  the  relationship  of 
the  petitioners  to  which  would  cease  upon  the  sale  of  those  furnaces,  (4) 
the  prospective  exhaustion  of  the  ore  banks  before  the  coming  of  the  re- 
mainders into  possession,  Brock  v.  Steel  Co.,  203  Pa.  349  (1902),  at  253. 

Mortgages — Trustees.  That  money  was  necessary  to  pay  for  improveH 
ments  and  repairs  to  the  property,  Lee's  Est.,  18  Phila.  2,  s.  c.  42  L.  I. 
488  (1885). 

Sales — Contingent  remainders  to  a  class.  That  the  property  was  un- 
productive, in  bad  repair  and  burdensome,  and  sale  would  inure  to  the 
benefit  of  the  remaindermen  and  those  having  future  or  contingent  in- 
terests therein,  Loucks's  Est.,  203  Pa.  278  (1902),  s.  c.  sub  nom.  Myers's 
App.,  16  York  6,  affirm.  15  York  181.  (i)  That  income  from  the  pro- 
ceeds would  be  greater  than  the  revenue  from  the  property,  (2)  that  to 
maintain  the  rental  at  the  time  of  presenting  the  petition  the  whole  prop- 
erty would  have  to  be  kept  rented  and  the  assessment  remain  the  same, 
a  state  of  affairs  not  likely  to  continue,  (3)  that  there  was  a  mortgage 
of  a  large  amount  that  jeopardized  the  property  if  there  should  be  a  dim- 
inuation  in  rental,  (4)  that  with  the  number  of  owners,  life  tenants,  and 
remaindermen  who  could  not  protect  their  interest  it  was  a  serious  ques- 
tion to  have  an  incumbrance  the  size  of  the  mortgage  in  question  against 
the  property  if  the  property  fluctuated  and  affected  income,  (5)  that  the 
real  estate  was  in  an  inflated  condition;  objection  by  remaindermen  that 
property  would  continue  to  advance  in  price  was  overruled,  Smith's  Est., 
207  Pa.  604  (1904),  confer  McAlpin's  Est.,  I  Phila.  440  (1852).  That  the 
property  was  entirely  unproductive  and  costing  the  estate  an  annual  sum 
for  taxes  and  interest  on  the  mortgage,  equitable  remainders,  Moorehead 
v.  Wolff,  123  Pa.  365  (1889),  s.  c.  23  W.  N.  C.  167,  36  Pitts.  L.  J.  352, 
46  L.  I.  261.  Where  the  trust  had  terminated  and  the  limitations  after  the 
life  estate  were  contingent  to  children  and  then  vested  in  nephews  and 
nieces,  the  latter,  therefore,  having  a  vested  remainder  subject  to  be  di- 
vested by  the  vesting  of  the  contingent  remainders,  and  who  objected, 
petition  being  presented  by  the  life  tenant,  (i)  That  the  property  was 
practically  unproductive,  (2)  that  the  investment  of  the  proceeds  would 
yield  a  larger  income  to  the  tenant  for  life  whose  interests  were  more 
to  be  regarded  than  those  of  the  remainderman,  (3)  that  the  price  of- 
fered was  not  likely  to  be  increased  if  the  sale  was  deferred  until  the  time 
of  the  falling  in  the  remainders,  when  it  would  have  to  be  made  for 
the  purposes  of  partition,  (4)  that  the  threatened  enforcement  of  a 
municipal  lien  would  expose  the  property  to  the  expense  of  litigation  and 
sheriff's  sale,  Gamble's  Est.,  9  D.  R.  691  (1900). 

Sale  of  an  interest  of  a  minor;  that  the  owner  of  an  adjoining  lot  was 
about  to  erect  thereon  a  large  mill  or  factory  to  be  operated  by  steam 
and  machinery  which  would  greatly  diminish  the  value  of  the  premises, 
Graham's  Est,  14  W.  N.  C.  31  (1883). 


34  SALE  OF  UNPRODUCTIVE  REAL  ESTATE.  §  30 

Sale  of  Unproductive  Real  Estate  for  Improvement  and  Repairs. 

§  30.  It  was  intimated  in  Grenawalt's  App.,  u  that  part  of  the 
property  might  be  sold  to  raise  money  for  repairs,  improvements 
to  the  remainder  and  for  payment  of  liens,  which  remarks  were 
quoted  with  apparent  approval  by  Penrose,  J.,  in  Van  Dusen's 
Est.12 

It  is  clear  that  necessity  for  a  payment  for  improvements  and 
repairs,  and  the  fact  that  the  land  is  unproductive,  are  reasons 
why  a  sale  is  to  the  interest  and  advantage  of  those  interested 
in  any  of  the  cases  mentioned  in  the  act  but  only  when  these 
circumstances  are  present.  In  nearly  all  of  the  cases  where  the 
court  has  dwelt  on  the  advisability  of  the  sale  for  improvements, 
repairs,  and  payment  of  liens,  etc.,  one  of  the  circumstances 
mentioned  in  the  act  was  present.13 

In  Carey's  Estate,14  a  petition  for  inquest  in  partition  was 
granted  because  the  will  did  not  work  an  equitable  conversion. 

In  the  following  cases  the  petition  was  refused  for  the  reasons  indicated. 

Trusts — Sales.  Petition  by  cestui  que  trust  for  decree  of  sale  from 
trustees  to  him,  (i)  strong  opposition  to  the  sale,  (2)  conflicting  evidence 
as  to  the  value  and  propriety.  Exceptions  sustained  to  master's  report  in 
favor  of  the  sale,  Sharp's  Pet.,  6  Phila.  153  (1866),  s.  c.  23  L.  I.  412. 

(n)  37  Pa.  95  at  98  (1860),  Thompson,  J.,  "But  taking  it  as  presented 
in  the  auditor's  report,  that  there  were  existing  claims  against  the  estate 
for  debts  'not  liens  of  record,'  and  that  repairs  and  improvements  were 
needed  to  other  parts  of  the  estate,  held  for  the  'same  uses  and  persons/ 
which  required  the  raising  of  money  by  a  sale  of  a  portion  of  it  for  the 
relief  and  benefit  of  the  residue  (for  this  is  the  essence  of  the  report), 
what  ground  is  there  to  question  the  power  of  the  court  to  order  a  sale? 
It  certainly  may  be  done  for  the  payment  of  debts;  so  also  by  a  fair 
interpretation  of  the  act  may  it  be  done  for  improvement  and  repairs;  for 
the  act  provides  that  money  raised  shall  not  be  expended  except  for  the 
payment  of  liens  or  improvements  of  the  real  estate  mortgaged,  or  other 
real  estate,  when  held  for  the  same  uses  and  persons.'  If  it  may  be  so 
applied,  it  may  be  raised  for  the  purpose  of  such  application." 

(12)  ii  Pa.  C.  C.  201  (1892),  s.  c.  29  W.  N.  C.  573,  i  D.  R.  156. 

(13)  e.  g.,  Camber's  Est.,  I  W.  N.  C.  85  (1874),  contingent  remainder 
to  a  class,  see  §  104,  post.    Rhoades's  Est.,  4  W.  N.  C.  527  (1877),  petition 
by  trustees  to  sell  vacant  land  on  the  ground  of  expense  in  maintaining 
the  tract.    Petition  granted  on  report  of  examiner  in  its  favor.    See  Lee's 
Est.,  18  Phila.  2  (1885),  s.  c.  42  L.  I.  488,  case  of  a  mortgage  by  trustees  to 
pay  for  repairs  and  improvements. 

(14)  9  Kulp  336  (1898). 


§§  3J-32  WITHOUT  PREJUDICE  TO  TRUST  OR  CHARITY.  35 

A  dictum  by  Darte,  P.  J.,  that  the  courts  have  power  to  order 
a  sale  of  unproductive  real  estate  even  where  executors  have 
been  given  power  of  sale,  if  for  the  best  interests  of  the  estate, 
may  be  disregarded  as  unsound.  That  real  estate  is  unproduc- 
tive may  be  a  reason  for  a  sale  but  is  not  ground  by  itself.  It 
is  not  one  of  the  circumstances  mentioned  in  the  act.  Some  of 
these  circumstances  must  exist  besides  the  reason. 

In  Kerner's  Est.,15  a  life  tenant  petitioned  for  leave  to  sell 
real  estate  on  the  ground  of  its  unproductiveness,  and  the  peti- 
tion was  refused  as  a  vested  remainderman  objected.  This  case 
is  a  square  authority  for  the  proposition  that  the  mere  unpro- 
ductiveness of  the  real  estate  is  not  a  sufficient  reason  for  au- 
thorization of  a  sale. 

Urgent  Necessity  not  Required. 

§  31.  In  the  Trust  Estate  of  Libbeus  S.  Cotton,  et  al,16  a 
trust  was  created  without  power  of  sale  following  the  early 
form  of  spendthrift  trusts,  where  the  trustee  is  allowed  a 
reasonable  support  and  the  title  is  free  from  liability  for  his 
debts.  On  application  of  the  trustee,  the  Common  Pleas  re- 
fused a  decree  of  sale.  The  case  simply  turned  on  whether  it 
was  expedient  to  make  the  sale,  and  the  only  thing  necessary 
to  notice  is  that  the  language  of  the  court,  where  they  say  that 
there  must  be  an  urgent  necessity  to  justify  the  ordering  of  a 
sale,  is  entirely  too  broad.  Under  the  terms  of  the  deed  in  that 
case,  it  might  possibly  be  that  an  urgent  necessity  to  the  cestui  que 
trust  should  be  required  before  it  would  be  to  his  interest  and  ad- 
vantage to  sell.  There  is  no  occasion  to  require  that  the  disposi- 
tion of  the  title  prayed  for  must  be  a  matter  of  urgent  necessity  or 
even  of  ordinary  necessity.  A  sale,  etc.,  may  be  to  the  interest  and 
advantage  of  those  interested  without  being  necessary. 

Without  Prejudice  to  Trust  or  Charity. 

§  32.  It  must  appear  that  the  sale,  etc.,  can  be  made  without 
injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held.  This  is  a  jurisdictional  fact  and  should  be  averred 
in  the  petition,  and  set  out  in  the  decree  although  it  may  generally 
be  gathered  from  the  face  of  the  title  what  effect  the  sale  will 


(15)  30  Pa.  C.  C.  175  (1904),  s.  c.  13  D.  R.  311. 

(16)  21  Pa.  C.  C.  451  (1899). 


36  IMMUNITY  FROM  ALIENATION.  §  33 

have  on  the  trust.  The  cestui  que  trust  must  be  as  well  off  after 
the  sale  as  before  and  receive  as  large  an  income  from  the  prop- 
erty. Since  the  sale  substitutes  the  purchase  money  for  the 
land  and  does  not  change  the  title  or  limitations,  these  words 
must  be  construed  to  mean  financial  injury  or  prejudice.  No 
case  on  this  has  been  found. 

In  the  case  of  a  charity,  a  prejudice  to  the  party  interested 
may  exist  which  would  not  be  present  in  an  ordinary  case,  as 
where  there  are  special  reasons  for  the  location  of  the  charity 
in  a  particular  place.  This  will  sometimes  occur  in  the  case  of 
a  church,  schoolhouse,  etc.17  This  phrase  "without  prejudice  to 
any  trust  or  charity"  is  included  in  the  requirement  that  the  dis- 
position must  be  to  the  interest  and  advantage  of  the  parties  in- 
terested, really  adds  nothing  to  the  act  and  does  not  appear 
to  have  received  judicial  construction. 

In  McClurg's  Est.,18  there  was  a  sole  and  separate  use  created 
by  will  for  two  women.  No  trustee  was  appointed  in  the  will 
and  none  had  been  appointed  by  the  court.  A  petition  was  pre- 
sented by  the  cestui  que  trust  to  sell  the  undivided  interest  on 
the  grounds  (i)  that  taxes  were  in  excess  of  income  (2)  that 
this  excess  was  likely  to  become  greater  by  increased  taxes  and 
assessments  for  opening  and  grading  streets,  (3)  that  by  reason 
of  the  disability  of  the  devisees  to  sell,  the  lands  were  likely 
to  be  sacrificed.  Upon  return  of  the  sale,  it  appeared  that  it 
was  for  a  nominal  consideration  and  the  whole  object  of  the 
proceeding  was  to  vest  the  devisees  with  the  title  free  from  the 
trust.  Confirmation  was  refused.  The  court  said  the  colorable 
sale  would  be  to  the  prejudice  of  the  trust,  and  that  without 
prejudice  required  a  full  value  for  the  land. 

Without  Violation  of  Any  Law  Conferring  an  Immunity  or  Exemption 

from  Alienation. 

§  33.  The  act  also  provides  that  the  court  shall  find  that  the 
sale  etc.,  can  be  made  without  violation  of  any  law  conferring 
an  immunity  or  exemption  from  sale  or  alienation. 

The  first  observation  on  this  clause  .is  as  to  the  meaning  of 
"a  law  conferring"  immunity.  The  word  "law"  in  its  common 
acceptance  refers  to  some  rule  laid  down  by  the  legislature  by 

(17)  See  §39,  post. 

(18)  22  Pitts  L.  J.  133  (1875). 


§  34  IMMUNITY  FROM  ALIENATION.  37 

way  of  statute  law  or  by  the  courts  by  way  of  common  law,  and 
in  no  case  does  it  seem  permissible  to  stretch  the  word  "law" 
so  as  to  cover  the  prohibition  against  alienation  or  immunity 
from  alienation  imposed  by  a  former  owner  of  the  title.  This, 
however,  has  been  overlooked,  and  it  has  frequently  been  sup- 
posed by  the  courts  that  the  question  is  whether  a  prohibition 
of  alienation  imposed  by  an  individual  will  prevent  a  sale  being 
authorized  under  the  act.  The  cases  are  as  follows : 

§  34.  In  Burton's  App.,19  where  there  was  a  petition  for  au- 
thority to  sell  land,  the  title  to  which  was  in  the  ministers  and 
vestrymen  of  the  church,  by  whom  the  petition  was  presented, 
the  charter  of  the  church  contained  a  clause  prohibiting  aliena- 
tion. The  court,  in  an  opinion  by  Agnew,  J.,  held  that  the  con- 
gregation was  the  true  owner  of  the  property,  while  the  cor- 
poration held  but  the  bare  legal  title;  that  therefore  the  clause 
against  alienation  was  a  disability  upon  the  trustee  and  not  upon 
the  congregation,  and  was,  therefore,  within  the  intent  of  the 
act  as  being  capable  of  removal  by  the  decree  of  the  court,  and 
did  not  come  within  the  proviso  as  being  a  law  conferring  im- 
munity or  exemption  from  alienation.20 

(19)  57  Pa.  213  (1868).    "In  the  case  of  Burton's  Appeal  the  unincor- 
porated congregation  and  the  incorporated  officers  elected  by  the  con- 
gregation, called  Trustees  or  Board  of  Council,  the  latter  restricted  from 
aliening  the  realty,  could  together  have  conveyed;    for  the  restriction 
was  against  the  church  council  conveying  without  the  congregation ;    but 
it  would  have  been  unsatisfactory  to  the  purchaser  that  his  title  should 
depend  upon  the  preservation  of  the  minutes  of  those  two  bodies,  over 
which  he  could  have  no  control."     Price  on  The  Act  for  the  Sale  of 
Real  Estate,  (1874)  p.  81. 

(20)  "The  Act  of  April  i8th,  1853,  contains  apt  words  to  embrace  this 
case.    'Such  sale,  mortgaging,  leasing  or  conveyng  upon  ground  rent  may 
be  decreed,  whenever  real  estate  shall  be  held'  'for  religious,  beneficial 
and  charitable  societies  or  associations,  incorporated  or  unincorporated,' 
'and  generally  in  all  cases  where  estates  have  been  or  shall  be  devised 
or  granted  in  trust,  or  for  special  or  limited  purposes,  or  where  any  party 
interested  therein  is  under  a  legal  disability  to  sell  and  convey  the  same.' 
The  committee  who  framed -this  law  say,  in  their  report  (p.  9),  that  the 
bill  contains   'a  general  power  intended  to  cover  all  cases  of  trust  or 
powers,  and  wherever  any  party  in  interest  is  under  any  legal  disability.' 
The  property  in  this  case  is  held  in  trust  for  a  religious  society  or  associa- 
tion, and  for  special  or  limited  purposes,  and  the  church  corporation,  the 
trustee,  is  under  a  legal  disability  to  sell  and  convey.    The  restraint  upon 
alienation  imposed  by  the  charter  upon  the  church  council  is  but  a  dis- 


38  IMMUNITY  FROM  ALIENATION.  §  34 

ability  of  the  trustee  and  not  of  the  congregaton,  as  we  have  seen,  ex- 
cepting in  so  far  as  the  possession  of  the  legal  title  by  the  council,  and 
the  want  of  it  by  the  congregation,  together  with  the  number  and  fluctua- 
tions in  its  membership,  operate  as  a  practical  disability  on  part  of  the 
body.  The  really  effective  disability  lies  in  the  church  council  alone.  This 
disability  falls  within  the  terms  of  the  law  and  its  spirit  and  intent,  and 
is  therefore  capable  of  removal  by  the  decree  of  the  court,  unless  the 
case  comes  within  the  language  and  intent  of  the  proviso  to  the  first  sec- 
tion. The  court  'shall  have  jurisdiction  to  decree  the  sale,'  &c.  'Pro- 
vided that  the  same  may  be  done  without  the  violation  of  any  law  which 
may  confer  an  immunity  or  exemption  from  sale  or  alienation.' 

"Unquestionably  the  charter  is  a  law,  and  prohibits  alienation  by  the 
church  council,  but  does  it  confer  an  immunity  or  exemption  from 
sale?  The  stress  of  the  appellant's  argument  lies  in  this  proviso,  but  we 
think  it  misses  its  true  meaning.  The  language  is,  any  law,  not  any 
statute.  If  any  law,  which  restrains  the  power  to  sell,  is  a  barrier  to 
the  exercise  of  the  power  of  the  court,  the  proviso  nullifies  the  act;  for 
it  was  because  the  law  refused  permission  to  sell  to  infants,  lunatics, 
trustees  and  others  under  a  legal  disability  to  sell,  that  the  authority  was 
given  to  the  courts  to  decree  a  sale.  It  cannot  be  therefore  a  mere 
want  of  the  power  of  alienation,  a  simple  disability  to  sell,  that  the  pro- 
viso was  intended  to  cover.  But  an  immunity  or  exemption  from  sale 
or  alienation  has  a  meaning,  and  it  is  important  to  protect  certain  inter- 
ests. Immunity  or  exemption  from  sale  is  not  logically  predicable  of  a 
person,  but  it  is  of  a  thing.  It  cannot  be  said  of  the  owner  that  he  is 
free  from  alienation,  but  his  property  may  be  exempt.  It  is  therefore 
the  real  estate  itself  which  is  the  subject  of  the  proviso.  It  is  that  which 
possesses  the  immunity. 

"But  is  this  a  wise  distinction?  To  be  so  it  must  have  some  valuable 
purpose ;  and  this  is  easily  discovered.  There  are  many  cases  where  some 
use,  purpose  or  trust  lies  at  the  foundation  of  the  grant  of  title  and  where 
a  diversion  from  the  intent  of  the  donor  will  cause  the  estate  to  revert; 
or  where,  by  some  act  of  law,  by  the  exercise  of  public  power,  rights  are 
acquired  co-existent  only  with  a  purpose  or  use  to  which  the  property  is 
devoted;  and  some  where  by  contract  and  the  sanction  of  a  statute  an 
estate  is  incapable  of  being  divested. 

"Instances  may  be  found  in  grants  for  special  and  exclusive  uses,  as  for 
churches,  schools,  hospitals,  &c.,  and  for  public  purposes,  as  railroad  tracks, 
public  streets  and  squares,  and  others,  which  will  occur  to  the  professional 
mind.  Some  of  them  can  be  seen  in  the  followng  cases :  McKissick  v. 
Pickle,  4  Harris  140;  s.c.,  9  Id.  232;  Western  University  v.  Robinson, 
12  S.  &  R.  29;  Rung  v.  Schoneberger,  2  Watts  25;  Commonwealth  v. 
Rush,  2  Harris  193;  Commonwealth  v.  McDenald,  16  S.  &  R.  390;  Com- 
monwealth v.  Alburger,  i  Whart.  469.  In  all  such  cases  the  immunity 
or  exemption  inheres  in  the  title  or  estate  itself,  involving  rights  which 
would  conflict  with  the  interest  decreed  to  be  sold,  and  would  therefore 
be  impared  by  the  sale.  The  proviso  intends  to  protect  these.  But  where 
there  is  no  immunity  from  sale  intended  as  a  protection  of  the  estate 


§§  35-36-37 PROHIBITION  OF  ALIENATION  BY  DONOR.  39 

§  35.  In  Heffner's  App.,21  where  there  was  a  petition  for 
the  sale  of  real  estate  under  the  act,  and  it  appeared  that  the 
land  was  held  under  a  will  prohibiting  a  sale  for  a  certain  period, 
the  petition  was  dismissed  for  other  reasons,  and  the  question 
as  to  the  validity  of  the  prohibition  was  not  considered. 

§  36.  In  Mercer  Home,  Fisher's  App.,22  there  was  a  gift  in 
trust  with  a  prohibition  against  alienation  in  the  will,  which  the 
court  construed  to  be  applicable  to  the  fund  left  in  trust  for  the 
charity  and  not  to  the  title  to  the  land,  and  that  therefore  the 
trustees  could  make  a  sale  of  the  premises  under  the  Price  Act. 

It  is  interesting  to  observe  that  in  Burton's  Appeal,23  Agnew, 
C.  J.,  sustained  the  jurisdiction  upon  the  construction  that  the 
prohibition  applied  to  the  title  held  by  the  trustee  and  not  to 
the  cestui  que  trust,24  whereas,  in  Mercer  Home,  Fisher's  App.,25 
the  court  sustained  the  authority  to  confirm  the  sale  on  the 
ground  that  the  prohibition  applied  to  the  fund  left  in  trust  and 
not  to  the  title  in  the  land,  the  implication  from  this  latter  de- 
cision being  that  had  the  prohibition  applied  to  the  title,  the 
sale  would  not  have  been  authorized. 

§  37.  In  Funck's  Est.,26  the  testator  by  his  will  directed  that 
the  burial  ground  of  his  family  should  not  be  sold,  and  devised 
the  same  to  his  son,  Daniel,  in  fee,  in  trust  for  the  use  of  a 
burial  ground  forever.  It  appeared  that  no  bodies  had  been 
interred  in  the  burial  ground  for  a  great  many  years,  and  that 
all  the  bodies  had  been  removed  therefrom,  and  that  one  of  the 

itself,  and  it  is  but  a  mere  want  of  power  in  the  person  or  party  who 
holds  it,  and  no  independent  interest  would  suffer  by  the  conversion,  the 
law  intended  to  confer  the  power  upon  the  court  to  order  a  sale."  Agnew, 
J.,  in  Burton's  App.,  57  Pa.  213  at  219-220  (1868). 

(21)  119  Pa.  462  (1888),  s.  c.  21  W.  N.  C.  249. 

(22)  162  Pa.  232  (1894). 

(23)  57  Pa.  213  (1868). 

(24)  The  observations  of  the  learned  judge  on  this  point  are  open  to 
objection.    The  church  was   clearly  the  cestui  que   trust,   and  the  title 
was  in  the  ministry  and  vestrymen,  and  the  prohibition  against  alienation, 
therefore,  could  be  applicable  only  to  the  church  corporation  in  its  cor- 
porate capacity,  and  the  process  of  legal  reasoning  by  which  the  learned 
judge  transferred  that  prohibition  to  the  legal  title  held  by  the  trustees  is 
extremely  difficult  to  follow. 

(25)  162  Pa.  232  (1894). 

(26)  16  Super.  Ct.  434  (1901). 


4o  PROHIBITION  OF  ALIENATION  BY  DONOR.  §  37 

heirs  had  filed  a  bill  in  equity  to  restrain  the  removal  of  the 
bodies,  which  had  been  dismissed.  The  court,  therefore,  held 
that  the  burial  ground  was  lawfully  tenantless  after  the  lapse 
of  thirty-five  years.  A  petition  was  presented  by  Daniel  for 
the  confirmation  of  a  private  sale  under  the  Price  Act,  which 
was  affirmed.  This  is  a  very  close  case  to  a  determinate  fee 
but  the  court  regarded  it  as  a  trust.  It  was  contended  that  the 
clause  in  the  will  forbidding  a  sale  prevented  the  sale  under  the 
act.  The  court  said  "In  all  cases  where  the  immunity  or  ex- 
emption inheres  in  the  title  or  estate  itself,  involving  rights 
which  would  conflict  with  the  interest  decreed  to  be  sold  and 
would,  therefore,  be  impaired  by  the  sale,  the  protection  of  this 
proviso  may  be  interposed  with  effect,"  but  that  in  this  case 
there  was  no  such  immunity  and  the  clause  did  not  apply,  an 
unequivocal  direction  in  the  will  being  unavailing.  In  two  re- 
cent cases  the  court  expressly  decided  that  a  prohibition  of 
alienation  by  the  testator  will  not  prevent  the  court  authorizing 
the  sale  under  the  Price  Act.27 

In  both  these  cases  the  will  was  made  after  the  act  was 
passed.28  No  question  was  raised  as  to  this  point,  and  it  does 
not  seem  as  if  the  law  would  be  any  different  if  the  will  were 
made  before  the  Act  of  April  18,  1853,  because  the  jurisdic- 
tion of  the  court  to  order  the  sale  depends  on  the  circumstance 
that  the  prohibition  of  alienation  is  not  a  law,  and  if  it  is  not, 
it  makes  no  difference  when  it  was  made.29 

(27)  Brock  v.  Steel  Co.,  203  Pa.  249  (1902)  ;    Grubb  v.  Steel  Co.,  203 
Pa.  255  (1902).     See  also  Rhoades's  Est,  4  W.  N.  C.  527  (1877),  where 
a  sale  by  trustees  under  a  will  was  ordered,  notwithstanding  an  apparent 
direction  to  the  contrary  in  the  will ;   no  opinion ;   meagre  report. 

(28)  See  §  24a,  ante. 

(29)  In  Myers'  Est,  i  D.  R.  140  (1892)  s.  c.,  II  Pa.  C.  C.  194,  30    W. 
N.  C.  175,  testator  created  a  trust  of  his  residuary  estate  and  directed 
that  there  should  be  no  sale  thereof  until  after  the  decease  of  certain 
cestui  que  trusts  named,  and  authorized  his  trustees  to  sell  his  residuary 
estate  in  their  discretion  confiding  the  period  of  the  sale  entirely  to  their 
discretion.    The  petition  was  presented  by  certain  of  the  cestui  que  trusts 
for  the  sale  of  the  estate.  The  petition  was  dismissed,  the  court  holding  that 
they  had  no  power  to  interfere  with  the  discretion  of  the  trustees  although 
the  language  of  the  court  might  seem  to  imply  that  they  had  no  power  to 
order  a  sale  until  the  conditions  imposed  had  been  fulfilled.  The  case,  there- 
fore, does  not  touch  the  question  of  whether  the  sale  could  have  been  ordered 
under  the  Price  Act.  In  Fulton's  Est,  51  Pitts.  L.  J.  257  (1904),  there  was  a 
devise  to  A.  and  B.  for  life  upon  condition  that  neither  should  alienate, 


§§  3&-39  EFFECT  OF  PROHIBITION  AGAINST  ALIENATION.  41 

Law  as  to  Immunity  from  Alienation. 

§  38.  The  later  cases,  therefore  clearly  point  to  the  conclu- 
sion that  a  prohibition  of  alienation  by  a  testator  or  donor  does 
not  confer  the  immunity  or  exception  from  alienation  conferred 
by  law  mentioned  in  the  act,  and  such  a  prohibition  will  be  dis- 
regarded by  the  court  in  decreeing  a  sale.  The  grounds  of  de- 
cision in  these  earlier  cases  are  not  altogether  clear.  It  is  per- 
fectly obvious,  however,  that  such  a  prohibition  is  not  a  law,  and 
for  that  reason  alone  not  within  the  act.  There  is  probably  no  law 
in  Pennsylvania  conferring  an  immunity  or  exemption  from  alien- 
ation. The  doctrine  of  spendthrift  trusts  is  no  exception  because 
here  there  is  an  express  prohibition  of  alienation  which  is  upheld 
as  valid  by  law.  The  immunity  from  alienation  springs  from  the 
prohibition  and  not  from  the  law. 

Effect  of  Prohibition  Against  Alienation  as  to  a  Church. 

§  39.  It  has  recently  been  suggested,  however,30  that  a  clause 
prohibiting  alienation  might  be  valid  in  the  case  of  a  church 
corporation  when  it  was  designed  to  keep  the  church  in  a  cer- 
tain location.  It  is  apprehended,  however,  that  this  dictum  is 
contrary  to  the  spirit  and  purpose  of  the  act,  which  is  designed 
to  promote  the  alienability  of  real  estate.  It  has  already  been 
pointed  out31  that  a  court  of  equity  had  ample  jurisdiction,  and 
that  jurisdiction  was  exercised  in  Pennsylvania  before  the  pas- 
sage of  the  Price  Act,  to  authorize  a  sale  of  real  estate  held  upon 
a  charitable  trust,  and  there  is  nothing  in  the  act  which  indi- 
cates an  intention  to  oust  that  jurisdiction.32 

and  that  an  attempt  to  alienate  should  work  a  forfeiture.  The  property 
was  sold  under  the  Price  Act  upon  petition  of  one  of  the  life  tenants, 
and  it  was  held  upon  an  audit  of  the  account  of  the  trustee  who  made 
the  sale,  that  there  was  no  breach  of  the  condition  as  the  sale  was  the 
act  of  the  law,  and  therefore  the  surviving  life  tenant  was  entitled  to 
participate  in  the  distribution  of  the  proceeds. 

(30)  "Unless,  therefore,  it  shall  be  clearly  shown  by  the  terms  of  a 
specific  gift  constituting  an  appreciable  portion  of  the  fund  that  raised 
the  church,  that  a  trust  has  been  fastened  upon  the  corporation  expressly 
to  remain  forever  in  the  particular  location  designated,  no  question  of 
the  right  of  removal  can  arise,"  dictum  Sulzberger,  J.,  in  the  court  below 
in  Phillips  v.  Church,  225  Pa.  62  at  63  (1909). 

(31)  See  Foulke,  Rule  Against  Perpetuities,  etc.,  in   Penna.,    (1909). 
§758. 

(32)  See  §  13,  ante,  as  to  prejudice  to  trust  or  charity.    Confer  Cush- 
man  v.  Church,  188  Pa.  438  (1898),  s.  c.  14  Pa.  C.  C.  26  (1892),  see  162 
Pa.  288  (1894). 

4 


42  DISPOSITION  OF  OR  CONCERNING  THE  TITLE.         §  40 


CHAPTER  3. 

Disposition  of  or  Concerning  the  Title  Authorized  by  the  Act. 

Preliminary . . . §  40 

Sale  ' 

May  be  public  or  private §  41 

Must  be  for  an  adequate  consideration §42 

Distinction  between  public  and  private  sales  as  to  discharge 

of  liens   §  43 

Terms  of  the  sale §44 

Mortgage 

General  discussion §  45 

Stevenson's  Estate §  46 

Expenditure  of  mortgage  money §47 

As  to  confession  of  judgment §  473 

Lease    §  48 

Exchange §  49 

Conveyance  of  or  on  ground  rent 

Preliminary §  50 

Extinguishment   or   sale   of   ground   rent   reserved   under   a 

power  . . . ..  §  51 

Cases  to  which  act  applies   . ..  §52 

Sale  or  extinguishment,  under  the  act §53 

Security  and   form  of  the  decree §  54 

Square  and  adjust  lines  between  adjoining  owners  §55 

Purchase  of  real  estate §  56 

Change  location  of  right  of  way §  57 

Lay  out  and  vacate  streets,  subdivide  tract §58 

Who  may  petition §  59 

Who  may  be  appointed  to  execute  the  decree  §  60 

Preliminary. 

§  40.  It  is  important  to  refer  in  some  detail  to  the  different 
dispositions  of  or  concerning  the  title  authorized  by  the  act. 
While  the  same  general  principles  already  referred  to  apply  in 
all  these  cases,1  yet  there  are  a  number  of  special  considera- 
tions involved  in  each  which  deserve  attention.  It  is  to  be  ob- 
served that  the  case  of  a  sale  or  a  conveyance  on  ground  rent 
are  in  the  interests  of  the  free  alienation  of  property,  while  the 

(i)  That  the  case  is  one  of  those  specified  in  the  act,  that  the  disposi- 
tion in  question  is  to  be  the  interest  and  advantage  of  those  interested, 
not  prejudicial  to  any  trust  or  charity,  and  not  in  violation  of  any  law 
confering  an  immunity  or  exemption  from  sale  or  alienation. 


§§  4J-42  SALE  MAY  BE  PUBLIC  OR  PRIVATE.    CONSIDERATION.    43 

cases  of  a  mortgage,  lease  and  exchange  are  in  the  interest  of 
a  proper  administration  of  the  property.  There  is  therefore  a 
difference  in  the  policy  involved  which  leads  to  some  practical 
distinctions. 

Sale  may  be  Public  or  Private. 

§  41.  The  principal  disposition  authorized  by  the  act  is  a  sale, 
and  this  is  the  case  in  which  the  jurisdiction  of  the  court  is  most 
frequently  invoked.2  The  sale  may  be  public  or  private,  as  the 
act  provides  that  the  court  may  order  a  private  sale  if  it  is  of  the 
opinion  that  a  better  price  can  be  thereby  obtained  than  at  a 
public  sale.3  It  should  therefore  appear  and  be  so  averred  in 
the  petition  and  set  out  in  the  decree  in  the  case  of  a  private 
sale,  that  the  price  is  better  than  that  which  can  be  obtained  at 
public  sale.  Where  sale  is  public,  the  act  requires  full  adver- 
tisement for  at  least  twenty  days  by  handbills  posted  in  at 
least  twenty  of  the  most  public  places  in  the  city  or  county 
where  the  premises  shall  be  situate,  and  in  at  least  two  news- 
papers not  less  than  three  times  in  each.4 

Sale  Must  be  for  an  Adequate  Consideration. 

§  42.  It  seems  hardly  necessary  to  add  that  there  must  be 
an  adequate  consideration.  In  one  case,  where  the  parties 
cooked  up  a  sale  for  one  dollar  in  order  to  defeat  the  trust,5  the 
court  held  that  the  transaction  could  not  be  authorized;  that  a 
sale  of  one  dollar  or  a  colorable  sale,  was  not  the  sale  con- 
templated by  the  provisions  of  the  act.6 

(2)  See  §  200,  post. 

(3)  The  Act  of  May  9,  1889,  P.  L.  182,  authorizing  private  sales  for 
the  payment  of  debts  and  other  purposes  does  not  appear  to  affect  the 
Price   Act   which   in   itself   authorizes   a   private   sale,   consequently   the 
amendment  of  June  9,  1911,  P.  L,.  724,  requiring  notice  of  private  sales, 
does  not  seem  to  apply  to  proceedings  under  the  Act  of  1853,  and  this 
conclusion  is  further  strengthened  by  the  provisions  of  the  Act  of  June 
12,  1913,  P.  L.  470,  amending  the  Act  of  1911,  and  confining  its  provisions 
to  sales  for  the  payment  of  debts  of  a  decedent.    As  to  when  a  private 
sale  is  better  than  a  public  sale,  see  Smith's  Est,  188  Pa.  222  (1898). 

(4)  See  §  18,  ante. 

(5)  McClurg's  Est.,  22  Pitts.  L.  J.  133  (1875)  stated  §  32,  ante. 

(6)  See  §  211,  post,  on  price  of  sale. 


44  PUBLIC  AND  PRIVATE  SALE.  §§  43-44 

Distinction  Between  Public  and  Private  Sales  as  to  Discharge  of  liens. 

§  43.  The  distinction  between  public  and  private  sales  is  of 
importance  in  considering  what  liens  are  discharge  by  the  sale.7 
The  act  provides  that  by  such  public  sale  the  premises  sold 
shall  be  discharged  from  all  liens,  and  the  act  of  March  23, 
1 867,"  provides  that  private  sales  under  the  act  shall  discharge 
the  premises  sold  from  the  lien  of  the  debts  of  the  decedent, 
excepting  debt  of  record  and  debts  secured  by  mortgage.9 

Terms  of  the  Sale. 

§  44.  It  is  also  provided  that  the  sale  may  be  partly  for  cash 
and  partly  on  credit.10  The  usual  practice  is  to  take  some  form 
of  purchase  money  obligation,  generally  a  mortgage,  for  the 
amount  upaid.  It  was  frequently  the  practice,  particularly  in 
the  country  where  ready  money  was  not  so  available,  for  the 
orphans'  court  to  direct  a  sale  with  provision  for  deferred  pay- 
ment of  the  purchase  money,  extended  sometimes  over  a  con- 
siderable period  of  time.11 

It  was  provided  by  the  Act  of  March  22,  i859,12  which,  how- 
ever, does  not  apply  to  the  City  of  Philadelphia,  that  the  Or- 
phans' Court  should  in  authorizing  sales  of  real  estate  have 
power  to  direct  a  sale  on  credit  if  at  least  one-fourth  of  the 
purchase  money  were  paid  down  at  the  confirmation  of  the  sale.13 

(7)  This  subject  is  discussed  in  Chapter  17  on  Discharge  of  Liens  by 
the  sale. 

(8)  P.  L.  43,  §  2. 

(9)  See  also  discussion  of  sale  discharged  from  lien  of  debts  of  dece- 
dent, not  of  record,  §  113,  post. 

(10)  As  to  the  title  of  the  purchaser  pending  the  completion  of  the  sale. 
See  §  229,  post. 

(n)  In  Bailey's  App.,  2  Grant  225,  s.  c.  Bailey's  App.,  32  Pa.  40  (1859), 
there  was  an  administrator's  sale  for  the  payment  of  debts.  Order  of  the 
orphans'  court  provided  for  the  payment  of  one-third  down  at  confirmation, 
one-third  in  one  year,  and  one-third  in  two  years.  Upon  petition  of  the 
administrator  of  a  judgment  creditor  of  the  decedent  who  had  levied  on 
the  real  estate,,  the  sale  was  set  aside  and  decree  amended  to  make  the 
purchase  money  payable  in  one  year.  Confer,  Thompson  v.  Rogers,  67 
Pa.  39  (1870). 

(12)  P.  I,.  207.    For  text  of  the  act  see  Appendix  A.,  n.  66. 

(13)  It  seems  hardly  worth  while  to  add  that  if  the  decree  calls  for  a 
purchase  money  mortgage,  the  purchaser  may,  nevertheless  make  payment 
entirely  in  cash,  Potts  v.  Wright,  82  Pa.  498  (1876),  s.  c.  34  L.  I.  148,  24 
Pitts.  L.  J.  125,  5  L.  Times  O.  S.  35,  9  tanc.  Bar  14. 


§  45  MORTGAGE  UNDER  ACT.  45 

This  act  may  be  construed  as  limiting  the  provisions  of  the 
Price  Act  in  counties  outside  of  Philadelphia.  In  Philadelphia 
County  the  court  seems  to  have  full  discretion  under  the  terms  of 
the  Price  Act  in  fixing  terms  of  the  sale. 

General  Discussion  of  Mortgages. 

§  45.  A  mortgage  is  in  fact  an  incumbrance  or  pledge  of  the 
legal  title  as  security  for  a  loan.  The  considerations  involving 
the  advisability  of  a  mortgage  will  therefore  obviously  be  some- 
what different  from  those  applicable  in  the  case  of  a  sale.14  It 
is  not  proper,  therefore,  to  authorize  a  mortgage  to  pay  a  debt 
contracted  by  the  trustee  which  the  cestui  que  trust  does  not 
admit  to  be  due.15 

The  Orphans'  Court  may,  under  the  act  authorize  an  admin- 
istrator c.  t.  a.  to  mortgage  real  estate  for  the  purpose  of  pay- 
ing for  repairs  and  improvements  contracted  for  by  a  testa- 
tor in  his  lifetime,  together  with  such  additional  expenditures 
as  are  necessary  in  order  to  properly  complete  the  contracts.18 
The  propriety  of  authorizing  a  mortgage  in  the  case  where 
there  are  conflicting  interests  of  a  life  tenant  and  remainder- 
man will  often  be  a  subject  of  anxious  inquiry. 

For  a  case  where  the  trustees  of  a  life  estate  were  authorized 
by  Common  Pleas  to  mortgage  on  petition  of  the  cestui  que 
trust,  see  Carswell's  Pet.17  A  few  other  cases  of  a  mortgage  are 
collected  in  the  note.18  Since  the  mortgage  is  a  burden  on  the 

(14)  In  the  case  of  a  proposed  mortgage,  the  question  of  expediency  is 
a  broader  question  of  fact  than  in  the  case  of  a  sale,  as  where  subject  to 
the  lien  of  debts  not  of  record,  Penrose,  J.,  in  Reilly's  Est.,  13  Phila.  201, 
202  (1879),  s.  c.  36  L.  I.  49. 

(15)  Reilly's  Est.,  13  Phila.  201  (1879),  s.  c.  36  L.  I.  49.    In  this  case  the 
cestui  que  trust  were  minors  and  the  claim  was  not  yet  reduced  to  judg- 
ment.   The  trustee  was  authorized  to  mortgage  the  trust  property  to  pay 
taxes  and  other  necessary  expenses,  and  the  mortgage  included  fee  of 
counsel  whose  services  had  been  for  the  benefit  of  all  interested. 

(16)  Burton's  Est,  16  Pa.  C.  C.  289  (1895),  s.  c.  4  D.  R.  106. 

(17)  I  Phila.  521  (1854),  12  L.  I.  14.    There  was  also  a  dictum  in  this 
case  that  as  to  equitable  interests  in  remainder  vested  in  minors,  application 
would  have  to  be  made  to  the  orphans'  court  if  it  was  desired  to  unite  all 
interests,  and  the  decree  was  apparently  drawn  to  authorize  only  a  mort- 
gage of  the  life  estate. 

(18)  For  other  instances  of  mortgages  under  the  act  see  Orwig's  Est.,  19 
Phila.  158  (1889),  s.  c.  7  Pa.  C.  C.  71,  46  Iy.  I.  99.    All  owners  were  sui  juris 


46  MORTGAGE  UNDER  ACT.  §  45 

estate  and  only  authorized  after  it  is  found  to  be  to  the  interest  and 
advantage  of  all  concerned,  it  follows  that  the  decree  authorizing 
the  mortgage  must  be  strictly  pursued.  The  mortgagee  is  put  on 
notice  of  the  nature  of  the  transaction  and  bound  to  see  that  the 
mortgagor  who  executes  the  mortgage  is  fully  authorized  by  the 
terms  of  the  decree.19  A  mortgage  when  signed  by  the  trustees 
as  individuals  is  sufficiently  executed  when  the  circumstance  of 
the  transaction  appears  on  the  face  of  the  papers.20 

In  the  case  of  a  mortgage  of  a  trust  estate,  the  trustee  is  the 
proper  party  to  present  the  petition,  although  it  may  be  presented 
by  the  cestui  que  trust,  in  which  case  if  all  the  parties  join  the 
defect  is  overcome.22  The  mortgage,  however,  should  be  made 

except  one,  and  all  united  in  the  application  including  the  guardian  of  the 
minor,  and  the  land  was  subject  to  the  lien  of  decedent's  debts.  Penrose, 
J.,  construed  the  act  very  broadly.  In  Ash's  Est,  12  D.  R.  72  (1902),  the 
petiton  of  a  trustee  for  leave  to  mortgage  was  apparently  granted.  The 
facts  are,  obscurely  reported  and  it  does  not  appear  what  act  the  proceed- 
ings were  under.  In  Lee's  Est.,  18  Phila.  2,  s.  c.  42  L.  I.  488  (1885),  a  trustee 
was  authorized  to  mortgage  to  repair  and  make  improvements.  The  ref- 
erence by  Penrose,  J.,  to  the  6th  Sec.  of  the  act  of  April  13,  1854,  P.  L. 
368,  is  probably  erroneous  as  that  act  has  no  6th  Sec.  and  probably  was 
meant  for  the  6th  section  of  the  Price  Act  (Act  of  1853),  which  provides, 
inter  alia,  for  the  disposition  of  the  proceeds  of  the  mortgage,  and,  inter 
alia,  that  such  proceeds  shall  not  be  expended  except  upon  or  the  improve- 
ment of  real  estate,  etc.,  except,  etc.  The  case  probably  arose  under  the  Act 
of  1853.  In  Lombaert's  App.,  99  Pa.  580  (1882),  a  trustee  was  authorized  to 
execute  a  mortgage  to  raise  money  to  make  repairs  to  the  real  estate.  In 
Anderson  v.  Devlin,  17  Phila.  i  (1877),  s.  c.  34  L.  I.  115,  it  was  not  clear 
under  what  act  the  proceeding  was  had.  A  mortgage  was  executed  and 
there  was  apparently  a  controversy  over  the  application  of  the  proceeds  of 
the  mortgage.  In  West  v.  Cochran,  104  Pa.  482  (1884),  sub  nom.  West  v. 
Cochrane,  41  L.  I.  330,  s.  c.  31  Pitts.  L.  J.  373,  the  guardian  of  the  minor 
children  of  a  decedent  was  authorized  to  mortgage  the  interests  of  the 
minors  in  order  to  raise  money  for  the  payment  of  debts. 

(19)  Lawrence's  &  Appleton's  Ests.,  14  Pa.  C.  C.  662  (1894),  s.  c.  3  D.  R.' 
356,  35  W.  N.  C.  406;   reversed  on  other  grounds  in  Lawrence's  Est.,  169 
Pa.  185  (1895).    The  mortgagee,  therefore,  who  advances  more  money  than 
the  amount  authorized  by  the  decree  does  so  at  his  peril. 

(20)  Lawrence's  Est,  169  Pa.  185  (1895),  s.  c.,  14  Pa.  C.  C.  662  (1894), 
3  D.  R.  356,  35  W.  N.  C.  406.    Query  by  Ashman,  J.,  in  this  case  in  the 
court  below  whether  a  decree  authorizing  a  mortgage  generally  would  au- 
thorize a  mortgage  to  a  building  association  if  question  were  raised  at  the 
time  of  execution. 

(22)  Stevenson's  Est.,  4  Super.  Ct.  46  (1897),  at  51.    Carswell's  Pet., 
I  Phila.  521  (1854),  s.  c.  12  L.  L  14. 


§  46  MORTGAGE  UNDER  ACT.  47 

by  the  trustees  and  not  by  the  life  tenant.  The  same  rule  applies 
here  as  in  all  cases  of  mortgages  by  trustees,  namely,  that  the 
mortgagee  cannot  recover  on  the  mortgage  if  it  appears  that  he 
knew  of  a  misapplication  of  the  proceeds  by  the  trustee.23  In 
Spencer  v.  Jennings,2*  the  administrator  made  a  mortgage  under 
order  of  the  court  upon  a  petition  setting  forth  that  it  was  to 
raise  money  to  pay  debts  not  of  record  and  purporting  to  be  under 
the  Price  Act.  It  was  held  that  the  case  was  not  provided  for 
by  the  act,  and  therefore  the  mortgage  was  void  and  the  mort- 
gagee had  no  title  and  the  heirs  of  the  decendent  could  recover 
in  ejectment.25 

§  46.  In  Stevenson's  Estate,28  a  testator  had  left  property  in 
trust  for  certain  life  estates  with  remainders  over.  The  life  tenant 
applied  for  leave  to  mortgage  under  the  Price  Act.  The  court  com- 
mented on  the  fact  that  the  petition  should  have  been  made  by  the 
trustee  but  since  the  trustee  and  all  parties  joined  in  the  petition, 
that  defect  was  remedied.  The  decree  of  the  court  below,27  au- 
thorizing the  mortgage,  was  reversed,  the  Superior  Court  appar- 
ently not  thinking  it  was  to  the  advantage  of  the  estate  that  the 
mortgage  should  be  made.  The  remarks  of  Smith,  J.,  are  as  fol- 
lows :28 

"It  will  be  proper  to  ascertain  with  reasonable  certainty:  (i) 
The  probable  duration  of  the  life  estate,  (2)  whether  the  pro- 
posed outlay  becomes  necessary  because  of  the  neglect  of  the  trus- 
tee to  maintain  the  premises  in  a  tenantable  condition,  (3)  whether 
the  proposed  alterations  are  such  as  the  trustee  should  reasonably 

(23)  Confer  Lawrence's  Est.,  169  Pa.  185  (1895).    For  a  case  where  the 
court  sent  the  proceedings  back  because  of  insufficient  facts  on  the  record, 
see  Stevenson's  Est,  186  Pa.  262  (1898). 

(24)  114  Pa.  618  (1886),  affirmed  on  reargument  in  123  Pa.  184,  s.  c.  139 
Pa.  198  (1890). 

(25)  Confer,  Act  of  May  3,  1855,  P.  L.  415,  which  provides  that  the 
court  of  common  pleas  may,  upon  petition  of  the  trustee  and  the  cestui 
qui  trust  of  at  least  a  life  estate,  of  an  estate  composed  of  real  and  per- 
sonal property,  direct  the  application  of  the  personal  property  or  a  portion 
thereof  to  the  improvement  of  the  real  estate  in  certain  cases,  the  expend- 
itures to  be  a  charge  on  the  realty  and  recoverable,  if  necessary,  by  a  sale, 
as  in  the  case  of  orphans'  court  sales. 

(26)  186  Pa.  262  (1898),  s.  c.  4  Super.  Ct.  46  (1897),  17  Pa.  C.  C.  312,  5  D. 
R.  5  (1895). 

(27)  17  Pa.  C.  C.  312,  s.  c.  5  D.  R.  s  (1895). 

(28)  4  Super.  Ct.  ©51.  , 


48  EXPENDITURE  OF  MORTGAGE  MONEY.  §  47 

make  for  the  benefit  of  the  life  tenants,  without  regard  to  possi- 
ble advantages  to  the  remaindermen,  (4)  whether  the  improve- 
ments may  not  be  worn  out,  or  the  changing  demands  of  the 
neighborhood  render  them  useless,  before  the  expiration  of  the 
life  estate.  In  either  of  these  events  the  loan,  if  authorized, 
should  be  made  on  the  credit  of  the  life  estate  and  the  lien  re- 
stricted to  it. 

"If  it  should  be  found  to  the  interest  and  advantage  of  both 
the  life  tenants  and  the  remaindermen  to  have  the  improvements 
made  and  the  loan  effected,  and  that  the  cost  would  be  more  than 
the  life  estate  should  bear,  then  the  court  will  determine  by  itsi 
decree  what  proportion  should  be  borne  by  each  estate,  the  lien, 
notwithstanding,  to  extend  to  both.  Ordinarily,  when  both  es- 
tates will  be  benefitted  by  the  proposed  improvements,  the  court 
should  consider  to  what  extent  the  improvements  will  remain  and 
benefit  the  property  beyond  the  termination  of  the  life  estate,  and 
this  should  form  the  basis  of  the  charge  against  the  remainder." 

On  appeal  to  the  Supreme  Court,29  the  decree  of  the  Superior 
Court  was  affirmed,  the  Supreme  Court  being  of  the  opinion  that 
the  record  was  in  such  a  defective  condition  that  it  was  impossible 
to  ascertain  what  facts  had  developed  by  the  decree  and  therefore 
to  properly  decide  the  case.  In  a  case  of  this  kind  the  nature  of 
the  improvements  to  be  made  by  the  mortgage  money  should  be 
carefully  examined,  and  any  excess  of  income  above  what  the  life 
tenants  might  properly  expect  should  be  applied  by  the  trustee  as 
a  sinking  fund  towards  paying  off  the  mortgage.  The  adjust- 
ment of  the  equities  between  the  life  tenant  and  remainderman, 
is  frequently  of  very  considerable  difficulty.30 

Mortgage  Money  to  be  Spent  Only  on  the  Land,  etc. 

§  47.  It  must  be  remembered  that  the  Price  Act  specially  pro- 
vides in  Sec.  6  that  no  principal  monies  raised  by  mortgage  shall 
be  expended  for  any  other  purpose  than  for  the  payment  of  liens 
upon  the  improvement  of  the  real  estate  mortgaged  or  other  real 
estate  when  held  for  the  same  uses  and  persons  unless  the  sale  be 
required  for  the  maintenance  or  education  of  parties  having  the 
like  interests  vested  or  expectant  and  can  be  equally  and  equitably 
so  applied  and  without  diminution  of  the  capital  that  may  of  right 

(29)  186  Pa.  262  (1898). 

(30)  As  to  this  point,  see  Phillips's  Est.,  12  D.  R.  690  (1903). 


§§  47a-4&       CONFESSION  OF  JUDGMENT.    LEASE.  49 

become  the  property  of  parties  having  unbarred  interests  or  title 
in  remainder  or  by  executory  devises.  These  provisions  of  the 
act  must  be  carefully  kept  in  mind  in  applying  the  proceeds  of 
such  a  mortgage.  The  money  must  be  spent  upon  the  real  estate 
upon  which  the  mortgage  is  an  encumbrance  or  upon  other  real 
estate  which  is  held  under  the  same  title.  It  would  not  be  proper, 
for  instance,  to  take  the  proceeds  of  the  mortgage  upon  property 
held  under  one  trust  in  a  will  and  apply  that  to  the  improvement 
of  real  estate  held  under  another  trust,  but  the  proceeds  may  be 
applied  to  another  piece  of  real  estate  held  under  the  same  trust. 
In  like  manner,  where  a  minor  has  an  interest  in  any  proceeds,  it 
would  be  proper  for  the  court  to  apply  any  part  thereof  to  the 
education  and  maintenance  of  the  minor.  It  is  apprehended  that 
this  could  only  be  done  where  the  minor  has  a  vested  interest  and 
the  provisions  of  the  act  in  this  particular  are  merely  co-extensive 
with  the  law  under  which  the  orphans'  court  may  in  all  cases 
allow  out  of  the  estate  of  a  minor  a  suitable  sum  for  its  support, 
maintenance  and  education.81 

As  to  Confession  of  Judgment  Under  Order  to  Mortgage. 

§  47a.  There  seems  to  be  some  doubt  whether  a  decree  of  the 
orphans'  court  merely  authorizing  a  mortgage  confers  sufficient 
authority  to  execute  a  warrant  of  attorney  to  confess  judgment.81* 
In  view  of  this  doubt,  it  is  probably  better  to  insert  in  the  decree 
authorizing  the  mortgage,  a  special  clause  authorizing  and  direct- 
ing the  execution  of  a  warrant  of  attorney  to  confess  judgment 
under  the  usual  form. 

Lease. 

§  48.  Although  the  act  provides  for  the  authorization  of  a 
lease  in  the  cases  specified,  it  is  rarely  necessary  to  invoke  this 
clause  of  the  statute  and  few  cases  have  arisen.  The  reason  is 
that  defects  in  title  specified32  do  not  interfere  with  the  leasing 
of  the  property  except  in  extraordinary  cases.  A  trustee  has 
power,  indeed  it  is  his  duty,  to  lease  without  any  authority  being 
expressly  conferred.  So  also  a  guardian,33  committee  of  a  luna- 

(31)  Act  March  29,  1832,  P.  L.  190  §  13. 
(3ia)  See  §  248,  post. 

(32)  See  table  in  note  18  §  13  ante. 

(33)  Stoughton's  App.,  88  Pa.  198  (1879),  semble. 


50  LEASE.  §  48 

tic,  married  woman,  tenant  of  a  property  subject  to  contingent 
remainders  or  executory  devises,  owner  of  a  qualified  fee,  or  a 
corporation  may  each  make  a  lease  notwithstanding  the  disability 
to  convey  or  mortgage  embraced  or  inherent  in  their  title. 
Where,  however,  it  is  desired  to  lease  for  a  long  term  of  years,  it 
may  be  advisable  to  obtain  the  order  of  the  court,  particularly 
where  there  is  a  life  estate  the  probable  duration  of  which  will  be 
less  than  the  proposed  term  of  the  lease,  and  there  are  contingent 
remainders  limited  after  the  life  estate.  Although  this  proceed- 
ing would  be  found  just  as  useful  where  the  life  estate  is  followed 
by  vested  remainders,  apparently  no  provision  is  made  for  such  a 
case.  Here,  of  course,  all  parties  not  under  disability  could  join 
in  the  lease.  If  one  of  the  vested  remaindermen  is  a  minor, 
there  would  be  sufficient  ground  for  the  jurisdiction  of  the  court 
to  attach  as  to  his  interest.  A  lease  which  extended  beyond  the 
duration  of  the  life  estate  would,  to  that  extent,  divest  the  inter- 
est of  the  vested  remaindermen,  and  the  lessee  could  assert  his 
right  as  against  them.  The  court  may  consider  a  very  long  lease 
of  50  years  as  amounting  to  a  sale  in  a  case  where  the  will  re- 
quires the  assent  of  several  persons  to  a  sale.34 

In  Stoughton's  App.,35  a  guardian  executed  a  lease  of  40  acres 
of  certain  oil  lands  for  twenty-one  years  without  confirmation  of 
the  court.  He  then  made  another  lease  for  twenty  years  to  an- 
other party,  which  was  confirmed,  which  second  lease  interfered 
with  the  first.  It  was  held  on  application  by  the  first  lessees  to 
have  relief  against  the  second  lease  that  they  had  no  standing,  the 
first  lease  having  been  made  without  authority.  It  did  not  appear 
under  what  act  the  second  lease  was  confirmed ;  probably  under 
the  act  of  1853. 

By  the  act  of  June  8.  i874,36  supplementing  the  Price  Act,  the 
court  may  in  the  case  of  a  lease  of  mining  lands  decree  a  combina- 
tion of  the  same  (presumably  for  the  purpose  of  the  lease)  with 
other  adjoining  lands  so  as  to  form  one  tract  and  apportion  the 
rent  among  the  several  owners  thereof,  as  if  they  were  tenants  in 
common  of  the  whole  according  to  the  quantum  of  their  interests 
before  the  combination  was  made. 

So  also  where  a  trustee  proposes  to  make  a  long  term  improve- 

(34)  Freeman's  Est.,  181  Pa.  405  (1897).    See  21  D.  R.  i  (1911). 

(35)  88  Pa.  198  (1879). 

(36)  P.  Iy.  277,  Sec.  I.    For  text  see  appendix  A. 


§§  49"5°  EXCHANGE.   CONVEYANCE  OF  OR  ON  GROUND  RENT.  51 

ment  lease,  the  jurisdiction  of  the  act  should  be  invoked  to  pro- 
tect all  parties.  In  Hollins's  Est.,37  the  trustee  of  a  one-fourth 
undivided  interest  was  refused  leave  to  join  in  a  sixty  years  im- 
provement lease  because  of  the  objection  to  the  lease  by  a  cestui 
que  trust  who  was  sui  juris.  Penrose,  J.,  said  that  such  objection 
would  almost  be  sufficient  to  defeat  a  sale  or  lease.  The  joinder 
of  the  other  tenants  is  material  under  the  act,  only  as  of  impor- 
tance as  furnishing  persuasive  evidence  that  the  proposed  disposi- 
tion is  to  the  interest  of  the  cestui  que  trust.  A  decree  of  the 
court  in  these  cases  is  perhaps  more  necessary  for  the  protection 
of  the  lessee  than  for  the  protection  of  the  lessor. 

Exchange. 

§  49.  The  exchange  of  real  estate  is  the  same  as  a  sale  except 
that,  in  the  first  case,  land  is  exchanged  for  land,  and,  in  the 
second  case  it  is  exchanged  for  money.  The  words  of  the  act, 
therefore,  authorizing  a  sale  seem  to  cover  the  case  of  an  ex- 
change. No  case  has  been  found  on  this  point  except  Miller's 
Est.,38  where,  however,  the  court  refused  to  authorize  the  trans- 
action because  it  was  not  of  the  opinion  that  it  was  to  the  interest 
and  advantage  of  those  interested.  Most  of  the  parties  in  interest 
opposed  the  exchange.  Penrose,  J.,  said  that  the  court  had  power 
to  authorize  the  exchange  under  the  act  of  1853  and  the  act  of 
April  13,  i854,39  permitting  investment  in  other  real  estate. 

Exchange  means  exchange  of  interest  in  land  for  another  land, 
and  not  an  exchange  of  interests  in  the  same  property,  as  in 
Thomas's  Est.,40  which  is  partition.  Section  7  provides  that  the 
court  may  authorize  trustees,  committees,  guardians,  married 
women  and  corporations  to  make  and  take  conveyances  by  deed 
acknowledged  in  court  without  public  sale  in  order  to  square  and 
adjust  lines  between  adjoining  owners. 

Conveyance  of  or  on  Ground  Rent. 

§  50.  A  conveyance  on  ground  rent  is  where  the  grantor  se- 
cures part  of  the  purchase  money  by  reserving  a  rent  out  of  the 
property  conveyed  to  be  paid  by  the  grantee,  his  heirs  and  assigns, 
which  rent  in  generally  expressed  to  be  extinguishable  upon  the 

(37)  16  D.  R.  441  (1907). 

(38)  4  D.  R.  328,  s.  c.  16  Pa.  C.  C.  449  (1885). 

(39)  P.  L.  369- 

(40)  ii  D.  R.  290  (1902). 


52  EXTINGUISHMENT  OF  GROUND  RENT.  §  51 

payment  of  a  certain  capital  sum  which  is  mentioned  in  the  con- 
veyance. It  is  often  extremely  convenient  to  make  settlement 
for  a  property  in  this  way,  and  the  act  merely  recognized  a  prac- 
tice which  has  long  been  common  in  the  State  of  Pennsylvania, 
when  it  empowered  the  courts  to  authorize  a  conveyance  on 
ground  rent.  Indeed,  power  to  authorize  a  conveyance  of  this 
kind  seems  to  be  implied  in  that  part  of  the  act  providing  that  the 
sales  may  be  partly  for  cash  and  partly  for  credit,  and  on  such 
terms  as  the  court  shall  approve.  This  clause,  however,  puts 
the  matter  beyond  doubt. 

Extinguishment  or  Sale  of  Ground  Kent  Reserved  Under  a  Power  of  Sale. 

§  51.  Under  the  law  as  it  stands  independently  of  the  act, 
there  is  some  doubt  whether  an  executor  or  trustee  having  a  power 
of  sale  who  should  exercise  the  power  by  a  conveyance  reserving 
the  ground  rent,  would  have  the  power  to  convey  or  extinguish 
the  rent,  it  being  supposed  that  the  power  had  been  exhausted 
by  the  first  conveyance.42 

The  clause  in  the  act  providing  that  "[every  power  to  sell  in  fee 
simple  real  estate]  created  by  deed  or  will  shall  be  taken  to  confer 
an  authority  to  sell  and  convey  reserving  a  ground  rent  or  rents 
in  fee  and  the  same  to  release  and  extinguish  according  to  law 
and  the  stipulation  of  the  deed,  and  also  to  grant  and  convey  such 
ground  rent  or  rents  to  any  purchaser  or  purchasers  thereof  free 
of  all  trust,"  was  obviously  designed  to  remove  this  doubt  and 
make  it  clear  that  such  power  of  sale  would  authorize  a  subse- 
quent extinguishment  of  the  rent  which  had  been  reserved  there- 

(42)  Where  there  is  a  sale  on  ground  rent  under  a  power  of  sale  which 
does  not  specifically  give  power  to  extinguish  the  rent,  the  power  is  ex- 
hausted by  the  conveyance,  and  the  executors  cannot  subsequently  sell  or 
extinguish  the  rent,  Ex  parte  Elliott,  5  Whart.  524  (1840),  semble.  Gibson, 
C.  J.,  pointed  that  the  execution  of  the  power  cannot  be  repeated,  and  said 
that  the  question  was  whether  the  power  was  exhausted  by  the  conveyance 
in  question.  Where  the  will  gave  the  executors  "full  power  to  sell  and 
dispose  of  or  to  let  on  ground  rent and  make  and  execute  suf- 
ficient deeds  of  conveyance  in  fee  simple  or  otherwise,"  and  the  executors 
conveyed  on  ground  rent  with  a  clause  of  redemption,  it  was  held  that 
they  had  full  power  to  extinguish  the  ground  rent  and  receive  the  extin- 
guishment money,  Ex  parte  Huff,  2  Pa.  227  (1845).  The  court  put  the 
decision  partly  on  the  ground  that  a  sale  on  ground  rent  was  in  effect  an 
executory  contract  of  sale,  and  that  the  extinguishment  was  merely  the 
completion  of  the  entire  contract. 


§  52  APPLICATION  OF  ACT  TO  GROUND  RENTS.  53 

under.  It  is  to  be  observed  that  the  part  of  the  clause  enclosed 
in  brackets  was  omitted  from  the  amendment  of  June  14,  i897,48 
and  there  is  therefore  some  doubt  under  the  law  as  it  stands  as 
to  what  this  clause  means.  Assuming  that  the  clause  had  a 
meaning,  that  is  to  say  as  to  cases  arising  between  April  18,  1853, 
and  June  14,  1897,  when  the  clause  stood  in  its  original  form,  the 
further  question  arises  as  to  whether  under  this  clause  it  was  neces- 
sary for  the  person  having  such  power  of  sale  to  apply  to  the  court 
in  order  to  make  the  conveyance  or  reservation  of  the  ground 
rent.  There  is  nothing  whatever  to  indicate  that  such  applica- 
tion to  the  court  is  necessary,  and  the  clause  is  so  worded  as  to 
merely  operate  as  a  construction  of  a  power,  independently  of  any 
proceedings  in  court. 

Cases  to  Which  Act  Applies. 

§  52.  When  the  title  to  the  ground  rent  is  derived  under  a 
deed  or  will,  and  there  is  a  power  of  sale  in  fee  simple,  the  law  is 
clear  that  the  ground  rent  may  be  sold  or  extinguished  under 
the  power.  It  is  furthermore  plain  that  the  only  person  who  can 
deal  with  the  ground  rent  is  the  one  having  the  legal  title,  and  no 
question  as  to  the  application  of  the  power  of  sale  can  arise  unless 
the  power  of  sale  is  conferred  upon  him.43a  Where,  however,  the 
title  of  the  ground  rent  is  affected  by  any  of  the  circumstances 
mentioned  in  the  act,43b  there  is  a  clear  necessity  for  resorting  to 
the  court. 

A  ground  rent  may  be  vested  in  several  owners  and  in  such  case 
be  the  subject  of  partition.  It  cannot,  however,  be  subdivided  or 
leased,  and  is  never,  except  in  rare  instances,  conveyed  on  ground 
rent.  The  only  cases  where  the  court  will  be  asked  to  act,  there- 

(43)  P.  L.  144- 

(43a)  In  Church  v.  Williams,  5  Pa.  C.  C.  641  (1888),  a  bill  in  equity  was 
filed  for  specific  performance  of  the  covenant  to  extinguish  the  ground 
rent.  This  case  is  badly  reported.  The  bill  was  apparently  filed  by  the 
owner  of  the  land  against  the  holders  of  the  rent.  The  owner  of  the  rent 
died  devising  the  ground  rent  to  his  wife  for  life,  with  power  of  appoint- 
ment as  to  one-half,  the  otheir  one-half  to  his  heirs  at  law.  The  life  ten- 
ant was  also  executrix.  She  exercised  the  power  of  appointment  and  letters 
of  administration  d.  b.  n.  c.  t.  a.  were  issued  on  the  estate  of  the  owner  of 
the  rent.  Extinguishment  requested  from  the  heirs  of  the  testator  and  the 
appointee  of  the  life  tenant.  Demurrer  on  the  ground  that  the  administra- 
tor d.  b.  n.  c.  t.  a.  was  the  one  to  exercise.  Demurrer  overruled.  The 
owner  of  the  rent  extinguishes  and  not  the  person  having  the  power  of 
sale. 

(43b)  Chap.  I,  n.  18. 


54  SALE  OR  EXTINGUISHMENT  OF  GROUND  RENT.        §  53 

fore,  will  be  the  case  of  a  sale,  mortgage,  extinguishment  or  par- 
tition. The  case  of  a  partition  presents  no  difficulty,  there  being 
nothing  in  the  partition  of  a  ground  rent  to  differentiate  it  from 
the  partition  of  any  other  piece  of  real  estate.44  In  like  manner, 
the  mortgage  of  a  ground  rent  is  free  from  difficulty,  and  is  similar 
to  any  other  mortgage.441  The  case  which  is  of  usual  occurrence 
and  is  involved  in  some  obscurity  is  the  case  of  a  sale  or  extin- 
guishment.45 

As  to  Sale  or  Extinguishment  of  a  Ground  Rent  Under  the  Act. 

§  53.  The  jurisdiction  of  the  court  under  the  act  in  ordering 
the  sale  or  extinguishment  of  a  ground  rent  is  frequently  invoked 
and  there  are  several  distinctions  to  be  drawn.  The  difficult  ques- 
tion is  whether  the  act  authorizes  the  court  to  enter  a  decree  di- 
recting an  extinguishment  of  the  rent.  It  has  been  frequently 
supposed  that  the  act  does  not  confer  jurisdiction  to  order  an  ex- 
tinguishment of  a  ground  rent,  and  petitions  in  such  cases  have 
been  refused.  It  is  apprehended  that  there  is  no  solid  distinction, 
so  far  as  the  Price  Act  is  concerned,  between  an  extinguishment 
and  an  assignment.  The  extinguishment  is  a  sale  differing  from 
an  assignment  only  in  the  form  of  the  deed  and  in  the  circum- 
stance that  in  one  case  the  grantee  is  the  owner  of  the  rent,  and 
in  the  other  case  he  is  not.  This  latter  circumstance,  however, 
seems  to  be  utterly  immaterial.  The  difference  in  the  wording  of 
the  deed  is  made  at  the  request  of  the  grantee  in  order  that  it  may 
clearly  appear  on  the  record  that  the  ground  rent  is  merged  and 
thus  clear  his  title  of  an  encumbrance.  The  extinguishment  of  the 
rent  depends  entirely  on  the  status  and  intent  of  the  assignee  of 
the  rent,  and  the  assignor  has  no  voice  in  the  matter  whatsoever. 
Neither  does  the  extinguishment  or  the  assignment  of  the  rent 
affect  the  relation  of  the  assignor  to  the  conveyance  in  any  way. 
It  seems,  therefore,  that  the  distinction  between  an  assignment 
and  an  extinguishment  is  merely  technical  and  utterly  immaterial, 
so  far  as  the  jurisdiction  under  the  act  is  concerned. 

In  Hirst's  Estate,46  the  trustees  were  seized  of  a  ground  rent 

(44)  See  §  154,  post,  as  to  partition. 
(443)  See  §  45,  ante,  as  to  mortgage. 

(45)  See  Pierce's  Est,  7  Phila.  475  (1869),  s.  c.  26  L.  I.  13,  s.  c.  sub. 
nom.  Clothier's  Pet.,  3  Brews.  254.    Case  of  a  sale  of  an  undivided  interest. 

(46)  147  Pa.  319  (1892). 


§  53        SALE  OR  EXTINGUISHMENT  OF  GROUND  RENT.  55 

which  belonged  to  the  testator  and  filed  a  petition  in  the  orphans' 
court  for  a  decree  authorizing  the  extinguishment  of  the  rent. 
The  decree  was  made  but  was  held  void  because  of  lack  of  notice 
to  the  committee  of  the  cestui  que  trust,  who  was  a  lunatic.  In 
this  case,  however,  it  was  held  that  the  trustees  had  ample  power 
to  voluntarily  extinguish  the  rent  because  they  could  be  compelled 
to  do  so  under  the  terms  of  the  ground  rent  deed,  and  that  what- 
ever a  person  under  disability  might  be  compelled  to  do,  his  repre- 
sentatives might  do  voluntarily.46a  In  Kramer's  Est.,47  the  peti- 
tion was  apparently  by  the  owner  of  the  land  against  trustees  to 
compel  them  to  extinguish  the  ground  rent,  and  although  they  sub- 
mitted themselves  to  the  decree  of  the  court,  the  petition  was  dis- 
missed on  the  ground  that  there  was  no  jurisdiction  under  the  Act 
of  1853,  the  remedy  being  in  the  Common  Pleas.48  The  case  is 
poorly  reported,  and  it  appears  from  an  examination  of  the  record 
that  the  ground  rent  had  been  paid  off  at  some  time  in  the  past 
and  there  had  been  a  failure  to  execute  a  proper  deed  of  ex- 
tinguishment. The  case  may  be  explained  on  the  ground  that  no 
consideration  would  pass,  and  therefore  not  within  the  terms  of 
the  Price  Act,  which  always  contemplates  a  sale  for  an  adequate 
consideration. 

The  distinction  between  a  redeemable  and  an  irredeemable 

(46a)  See  remarks  of  Penrose,  J.,  in  Shepherd's  Est.,  8  Pa.  C.  C.  520 
(1890)  at  522. 

(47)  37  Pa.  C.  C.  520,  s.  c.  19  D.  R.  603. 

(48)  The  Act  of  Feb.  5,  1821,  P.  L,.  25,  7  Sm.  L.  355,  Sec.  i,  provides 
that  where  a  redeemable  ground  rent  is  vested  by  death  of  owner  or  in  any 
other  manner,  in  minors,  trustees  or  other  persons  not  authorized  to  ex- 
tinguish, proceedings  may  be  had  in  Supreme  Court  or  Common  Pleas  by 

(1)  Executors  or  administrators  of  grantors  of  ground  rent 
Other  owners  of  the  ground  rent 

Guardians  of  minors 
Trustees 

(2)  Grantee  of  the  ground  rent 
Heirs  or  assigns  of  the  grantee 

by  petition  for  release  of  the  ground  rent  to  be  executed  by  (i).  Court 
may  order  (i)  to  execute  releases  and  receive  principal  and  arrearages  of 
interest,  and  may  in  its  discretion  order  security.  See  Sen-ill's  Pet.  (C.  P.) 
9  D.  R.  755  (1900)  ;  Calhoun's  Pet.  (C.  P.)  3D.  R.  232  (1894).  The  Act  of 
'Sept.  6,  1860,  P.  L.  (1861)  840,  Sec.  i,  authorizes  proceedings  by  owners  of 
property  to  pay  the  amount  of  the  ground  rent  into  court  and  extinguish  the 
same  where  there  are  judgments  or  liens  against  the  owners  of  the  ground 
rent. 


56  SALE  OR  EXTINGUISHMENT  of  GROUND  RENT.        §  53 

ground  rent  is  of  some  importance.  In  the  case  of  an  irredeem- 
able rent,  the  owner  of  the  rent  may  accept  the  payment  of  any 
sum  he  pleases  as  a  price  for  the  sale  or  extinguishment  of  the 
rent.  It  therefore  follows  that  every  case  of  an  irredeemable 
ground  rent  is  similar  to  every  other  case  of  real  estate  where  the 
owner  of  the  land  is  free  to  sell  or  not,  and  consequently  the  court 
in  considering  the  propriety  of  decreeing  a  sale  or  extinguishment 
of  such  a  rent  will  consider  the  value  of  the  property  out  of  which 
it  issues,  because  the  value  of  the  ground  rent  will  be  determined 
thereby.  Some  irredeemable  ground  rents  may  sell  at  a  premium 
of  one  hundred  per  cent,  or  upwards  and  some  may  be  worth  less 
than  par,  the  value  in  each  case  being  determined  by  the  value  of 
the  property  out  of  which  it  issues.  In  every  case  of  an  irredeem- 
able rent,  therefore,  the  court  will  be  under  the  necessity  of 
making  the  same  inquiry  as  to  the  propriety  of  the  sale  and  the 
adequacy  of  the  consideration,  as  in  any  other  case  of  a  sale  of 
real  estate. 

In  the  case  of  a  redeemable  ground  rent,  however,  somewhat 
different  considerations  apply.  Here  the  owner  of  the  rent,  if  sui 
juris  and  able  in  law  to  make  an  extinguishment,  may  be  com- 
pelled by  the  owner  of  the  land  to  extinguish  upon  receiving  the 
capital  sum  mentioned  in  the  deed  reserving  the  rent.483  By 
reason  of  this  circumstance,  the  market  price  of  the  rent  will  be 
almost  equivalent  to  the  capital  sum  mentioned  in  the  deed  as 
payable  for  its  extinguishment.  It  may  be  in  cases  where  the 
property  has  depreciated  that  the  value  will  be  considerably  less 
than  the  capital  sum.  It  will  not  ordinarily  be  worth  more  be- 
cause the  owner  of  the  property  will  not  pay  more  for  it  since  he 
can  always  extinguish  by  paying  the  sum  specified,  and  a  third 
party  will  not  usually  regard  it  as  a  desirable  investment  to  buy  it 
at  a  premium. 

All  these  considerations  are  important  for  the  court  to  con- 
sider in  entering  the  decree  in  such  a  case  and  should  be  borne  in 
mind  in  preparing  the  petition  and  decree.  In  the  case  of  the 
holder  of  the  rent,  the  jurisdiction  vested  by  the  act  seems  per- 

(48a)  It  is,  therefore,  important  in  all  cases  of  petitions  for  the  sale,  etc., 
of  a  ground  rent,  to  give  the  court  full  information  as  to  whether  the 
ground  rent  is  redeemable  or  irredeemable,  and  that,  it  seems,  can  only  be 
done  by  attaching  to  the  petition  a  copy  of  the  deed  reserving  the  ground 
rent  or  of  the  material  portions  thereof. 


§§  54-55  SQUARE  AND  ADJUST  LINES.  57 

fectly  clear,  and  there  is  no  reason  why  a  distinction  should  be 
drawn  between  the  case  of  a  sale  and  the  case  of  an  extinguish- 
ment, it  being  assumed  that  the  price  is  proper  and  it  is  to  the  in- 
terest and  advantage  of  the  parties  to  dispose  of  the  ground  rent. 
In  the  case  of  the  holder  of  the  land,  the  question  arises  whether 
the  act  authorizes  an  extinguishment  on  his  petition.  If  the 
owner  of  the  rent  voluntarily  joins  in,  some  of  the  circumstances 
mentioned  in  the  act  being  present,  then  the  case  seems  to  be  the 
same  as  if  the  petition  were  originally  presented  by  the  holder  of 
the  rent.  If,  however,  the  holder  of  the  rent  objects  to  the  ex- 
tinguishment, it  does  not  seem  that  the  act  confers  any  jurisdiction 
authorizing  the  court  to  compel  an  extinguishment. 

Security  and  Form  of  the  Decree. 

§  54.  The  security  obviously  need  only  cover  the  proportion 
of  the  purchase  money  received  in  cash,  in  which  case  the  decree 
would  authorize  a  conveyance  reserving  a  certain  sum  as  ground 
rent  to  be  extinguished  upon  payment  of  the  sum  fixed  and  order 
security  in  double  the  amount  of  the  balance  of  the  purchase 
money.  Under  this  form  of  decree  the  party  making  the  sale 
would  have  to  make  further  application  to  the  court  when  the 
time  arrived  for  the  extinguishment,  or  where  it  was  desired  to 
sell  the  ground  rent,  and  then  give  further  security  for  the  balance 
of  the  purchase  money  equalling  the  capital  sum  of  the  ground 
rent.  If  preferred,  however,  the  decree  may  require  security  in 
the  full  amount  of  the  consideration,  and  then  authorize  a  sale 
reserving  the  ground  rent,  and  at  the  same  time  authorize  an 
extinguishment  of  the  same  at  any  time  in  the  future.  One 
decree  would  cover  both  acts,  and  there  would  be  no  further 
necessity  for  making  another  application  to  the  court.49 

Square  and  Adjust  Lines  Between  Adjoining  Owners. 

§  55.     Trustees,  guardians,  committees,  married  women  and 

corporations  are  authorized  to  make  and  take  conveyances  by  deed 

acknowledged  in  open  court  without  public  sale  in  order  to  square 

and  adjust  lines  between  adjoining  owners.    This  practically  con- 

(49)  It  does  not  seem  to  be  necessary  to  expressly  authorize  an  extin- 
guishment in  the  case  where  the  security  ordered  in  the  first  place  is  suf- 
ficient to  cover  the  whole  purchase  money  and  there  is  a  covenant  in  the 
deed  calling  for  extingushment  upon  payment  of  the  capital  sum.  Ken- 
nelly's  Est.,  17  Phila.  99  (1884),  s.  c.  41  L.  I.  114. 

5 


58  PURCHASE  OF  REAL  ESTATE.  §  56 

fers  jurisdiction  to  make  an  exchange  of  real  estate,  and  there 
seems  to  be  no  necessity  here  for  security,  and  the  act  expressly 
provides  that  the  deed  may  be  made  without  public  sale.60 

Purchase  of  Heal  Estate. 

§  56.  The  act  also  authorizes  trustees,  guardians,  commit- 
tees, married  women  and  corporations  to  purchase  other  real 
estate  when  needful  adjoining52  to  that  already  owned  by  any 
such  party  or  useful  to  the  business  thereupon  carried  on  or 
when  necessary  to  protect  any  security  or  rent  held  on  property 
exposed  to  judicial  sale,53  provided  that  no  corporation  shall  be 
so  authorized  to  purchase  beyond  its  charter  license.  This  clause 
in  the  act  seems  to  be  merely  declaratory  of  the  existing  law,  and 
no  case  has  been  found  of  the  application  of  its  provisions.  It 
is  always  proper  for  a  fiduciary  to  purchase  real  estate  necessary 
to  protect  any  encumbrance  held  on  property  exposed  to  judicial 
sale.  The  authority  to  purchase  real  estate  has  also  been  ex- 
pressly conferred  by  the  act  of  April  13,  i854.84 

A  corporation  can  always,  of  course,  make  any  such  purchase 
without  any  order  of  court,  and  as  to  that  the  provisions  of  the 

(50)  In  Miller's  Est,  4  D.  R.  328  (1895),  s.  c.  16  Pa.  C.  C.  449,  there 
was  a  petition  for  confirmation  of  an  exchange  which  was  refused,  as 
there  was  objection  by  some  of  the  parties  in  interest.  The  court  seemed 
to  regard  the  case  as  analogous  to  an  investment  authorized  under  the 
Act  of  April  13,  1854,  P.  L,.  369,  Sec.  2. 

(52)  The  word  "adjoining"  does  not  appear  in  the  text  of  the  act  but 
should  be  supplied  to  make  sense. 

(53)  In  Fell's  Est.,  14  Phila.  248,  38  L.  I.  6  (1880),  the  executor  bought 
property  under  foreclosure  of  a  mortgage,  and  then  presented  a  petition 
for  a  ratification  of  the  sale  of  the  same,  the  purchaser  being  doubtful 
about  his  power  to  convey.    It  was  held,  in  an  opinion  by  Penrose,  J.,  that 
the  court  probably  had  jurisdiction  under  the  Price  Act  to  authorize  a  sale 
where  real  estate  shall  have  been  purchased,  but  that  it  was  not  necessary 
to  consider  the  provisions  of  the  act  as  the  court  had  jurisdiction  to  au- 
thorize the  sale  as  the  subject  matter  was  personal  property. 

(54)  Section  2.    P.  L.  369.    "That  it  shall  and  may  be  lawful  for  any 
trustee,  committee,  guardian,  or  other  person  acting  in  a  fiduciary  capac- 
ity, to  invest  trust  moneys  in  ground  rents,  or  other  real  estate,  by  leave 
of  the  proper  court,  under  proceedings  as  provided  in  the  act  to  which  this 
is  a  supplement :   Provided,  That  it  shall  be  the  opinion  of  the  court,  that 
such  investment  will  be  for  the  advantage  of  the  estate,  and  no  change  be 
made  in  the  course  of  succession  by  such  change  of  investment,  as  regards 
the  heirs  or  next  of  kin  of  the  cestui  que  trust." 


§§  57-58-59-  LOCATION  OF  RIGHT  OF  WAY.    SUBDIVIDE  TRACT.  59 

act  are  clearly  superfluous.55  The  proviso  that  no  such  corpora- 
tion shall  be  so  authorized  to  purchase  beyond  its  charter  license 
is  also  superfluous  because  the  court  would  have  no  power  to 
make  such  a  decree  in  the  face  of  the  act  limiting  the  amount 
which  a  corporation  shall  hold. 

Change  location  of  Right  of  Way. 

§  57.  Trustees,  guardians,  committees,  married  women  and 
corporations  may  also  make  and  take  or  join  with  owners  of 
other  undivided  interests  in  making  and  taking  conveyances  by 
deed  acknowledged  in  court  and  without  a  public  sale  in  order 
to  change  in  part  or  in  whole  the  route  and  location  of  any  right 
of  way  or  passage  extending  over  and  upon  adjoining  or  other 
lands,56  and  it  is  to  be  in  the  discretion  of  the  court  in  such 
cases  whether  security  shall  be  required.  It  does  not  seem  neces- 
sary to  require  any  security  in  any  such  case  unless  money  is  paid 
over  as  part  of  the  exchange.  No  case  has  arisen  under  this 
clause. 

Lay  Out  and  Vacate  Streets.    Subdivide  Tract. 

§  58.  The  act  also  provides  that  it  shall  be  the  duty  of  the 
court,  where  the  premises  may  admit  of  or  require  it,  to  lay  out 
roads,  streets  and  alleys,  and  to  vacate  such  as  shall  not  have 
been  paid  for  or  received  into  actual  use  by  the  public,  if  found 
to  be  inconvenient,  and  to  make  an  unprofitable  division  of  the 
property.  The  court  has  also  authority  to  order  the  premises, 
if  necessary,  to  be  so  sub-divided  as  to  command  the  highest 
price  and  greatest  rents.  These  clauses  of  the  act  will  be  rarely 
invoked  but  will  no  doubt  be  found  useful  and  necessary,  partic- 
ularly in  cases  where  it  is  proposed  to  dispose  of  a  large  tract  of 
ground  near  a  city.  These  provisions  merely  seem  to  give  the 
court  broader  discretion  in  authorizing  disposition  of  the  property, 
and  hardly  seem  to  call  for  any  further  comment. 

Who  May  Present  Petition. 

§  59.  The  act  says  "such  sale,  mortgaging,  leasing  or  con- 
veyance on  ground  rent  may  be  decreed  on  the  petition  of  any 
trustee,  guardian,  committee  or  person  interested/'  The  ques- 
tion, who  is  a  party  in  interest,  is  of  some  importance.  The  fact 
that  the  petitioner  is  a  party  in  interest  is  a  jurisdictional  fact 

(55)  See  §  24,  ante.    See  §  82,  post. 

(56)  By  the  provisions  of  the  act  of  April  18,  1864,  P-  L.  462,  Sec.  I. 


60  WHO  MAY  EXECUTE  DECREE.  §  60 

and  must  appear  on  the  record  and  should  be  averred  in  the 
petition.57 

It  was  intimated  by  Paxson,  C.  J.,58  that  where  there  is  a  de- 
vise to  A.  for  life  with  contingent  remainders,  the  executor  of 
the  testator  is  not  the  proper  person  to  present  a  petition  for  a 
sale  under  the  Price  Act  to  bar  the  contingent  remainders,  al- 
though it  is  probable  that  this  irregularity  would  not  be  serious 
after  the  final  decree.  It  is  clear  that  where  there  is  a  trust,  the 
trustee  is  the  proper  person  to  apply,59  and  that  the  cestui  que 
trust  may  petition  for  an  order  authorizing  his  trustees  to  mort- 
gage.60 Generally  the  petition  will  be  presented  by  the  party 
having  the  legal  title.61 

Who  May  be  Appointed  to  Execute  the  Decree. 

§  60.  It  seems  that  under  Sec.  4  the  decree  need  not  be  car- 
ried out  by  the  person  who  presented  the  petition.  The  court 
has  some  discretion  as  to  this,  and  where  the  petitioner  is  inter- 
ested in  the  estate  and  the  interests  are  undivided,  it  is  sometimes 
desirable  to  appoint  a  third  party  to  make  the  sale.  In  such  case 
the  petition  for  the  sale  or  mortgage,  &c.,  may  incorporate  a 
prayer  for  the  appointment  of  a  trustee  to  carry  out  the  decree, 
and  the  court  will  at  the  same  time  as  authorizing  a  disposition 
appoint  a  trustee  to  carry  it  out.62 

(57)  In  Gumbert's  App.,  no  Pa.  496  (1885),  the  sale  was  set  aside  be- 
cause, inter  alia,  the  interest  of  the  petitioner  applying  to  have  the  sale 
confirmed  was  not  set  out  and  the  interest  of  the  paties  applying  to  have 
it  set  aside  did  appear. 

(58)  In  Westhafer  v.  Koons,  144  Pa.  26  (1891). 

(59)  See  Moorhead  v.  Wolff,  123  Pa.  365  (1889),  s.  c.  23  W.  N.  C.  167, 
36  Pitts.  L.  J.  352,  46  L.  I.  261. 

(60)  Carswell's  Pet,  i  Phila.  521  (1854),  12  L.  I.  14. 

(61)  See  remarks  of  Clark,  C.,  in  Spencer  v.  Jennings,  123  Pa.  184  at 
196,  as  to  who  may  petition,  and  that  petition  must  be  presented  by  those 
actually  interested  in  the  land.    In  Corr's  Estate,  29  Pa.  C.  C.  276  (1903), 
s.  c.  12  D.  R.  788,  there  was  a  devise  to  a  school  conducted  by  a  church,  which 
was  held  to  be  in  easement  of  the  church  in  which  the  title  vested  and  by 
whom  the  petition  was  properly  presented. 

(62)  For  a  further  discusson  as  to  who  is  to  execute  the  deed  in  case 
of  Orphans'  Court  sales,  see  §  234,  post.     In  Ulrich's  App.,  2  Penny.  455 
(1882),  an  administrator  sold  for  the  payment  of  debts,  land  the  title  of 
which  was  in  the  name  of  a  third  party,  in  trust  for  the  decedent,  and  upon 
a  bill  in  equity  being  filed  in  the  common  pleas  against  the  third  party, 
a  decree  was  directed  compelling  him  to  make  a  conveyance  to  the  pur- 
chaser. 


§  62  LEGAL  DISABILITIES.  61 


CHAPTER  4. 

legal  Disabilities  of  the  Holder  of  the  Title. 

Preliminary    §  62 

Minority 

Preliminary   §  63 

Necessity  of  distinguishing  proceedings  under  other  acts   ...  §  64 
Notes,  Act  of  1832,  March  29,  P.  L.  190. 
Act  of  1836,  June  16,  P.  L.  682. 
Act  of  1851,  April  3^  P.  L.  305. 
Act  of  1853,  April  18,  P.  L.  503. 

Notice    §  65 

Undivided  interest 

Preliminary  discussion  §  66 

Necessity  of  joinder  of  other  parties §  67 

Gilmore  v.  Rodgers   §  68 

Pierce's  Estate   §  70 

Proceedings    by    owner   of    undivided    interest    sui    juris 

where  there  is  a  minor's  interest  §  71 

Sale  of  undivided  interest  of  a  minor  to  another  tenant 

in  common   §  72 

Reasons  for  sale  of  an  undivided  interest  §  73 

Guardian  appointed  in  one  county,  land  in  another  §  74 

Foreign  guardian  §  75 

Lunatics  and  habitual  drunkards  §  76 

Act  of  1836,  June  13,  P.  L.  589 §  77 

Notice  in  case  of  lunatics §  78 

Weak-minded  persons   §  79 

(Note  on  other  acts  relating  to  lunatics.) 
Coverture 

Married  women   §  80 

Married  men  §  81 

Corporations 

Preliminary    §  82 

Capacity  to  convey  §  83 

Holdings  in  excess  of  the  amount  prescribed  by  law §  84 

Religious,  beneficial  and  charitable  corporations   §  85 

Religious,  beneficial  and  charitable  associations,   §  86 

Preliminary. 

§  62.  In  this  chapter  we  have  gathered  together  those  clauses 
which  are  designed  to  authorize  a  disposition  of  the  title  notwith- 
standing some  legal  disability  on  the  part  of  the  owner,  or  in  the 
language  of  the  act,  of  a  party  interested.  A  case  may  arise 


62  IvEGAi,  DISABILITIES.  §  63 

where  there  is  some  defect  in  the  title  in  addition  to  the  disability 
of  a  holder  thereof.  In  such  case,  of  course,  there  will  be  two 
grounds  of  jurisdiction.  The  discussion  in  this  chapter  will  relate 
solely  to  the  case  of  legal  disability.  The  act  provides  generally, 
in  addition  to  the  specific  instances  enumerated,  that  the  court 
may  act  in  any  case  where  a  party  interested  is  under  a  legal  dis- 
ability to  convey.  This  clause  was  probably  introduced  to  cover 
any  case  which  might  have  been  inadvertently  omitted.  It  might 
be  that  under  this  clause  a  husband  with  a  wife  who  is  an  habitual 
drunkard  or  absent  and  unheard  from  for  seven  years  or  who  has 
abandoned  him  might  obtain  relief,  these  cases  not  being  spe- 
cifically provided  for  in  the  act.2 

Preliminary  Discussion  of  Minority. 

§  63.  The  act  provides  that  such  sale,  etc.,  may  be  decreed 
"whenever  real  estate  shall  be  held  for  or  owned  by  minors." 
This  phrase  as  worded  seems  to  cover  the  case  where  the  legal 
title  is  vested  in  the  minor  and  the  case  where  the  land  is  held  in 
trust  for  the  minor.  As,  however,  the  case  of  property  held  in 
trust  is  fully  provided  for  in  another  clause  of  the  section,  and 
the  objects  of  the  trust  are  immaterial  in  considering  that  clause,3 
so  much  of  this  provision  as  relates  to  property  held  in  trust  for 
a  minor  will  be  discussed  under  the  heading  of  trusts,  and  the 
immediate  discussion  will  be  limited  to  the  case  of  a  sale,  etc.,  of 
the  legal  title  of  a  minor.3a 

(2)  See  §  81,  post. 

(3)  See  §  134,  post. 

(3a)  A  guardian  has  power  to  make  an  ordinary  lease  so  jurisdiction 
under  the  act  is  unnecessary  except  in  special  cases  depending  on  the  na- 
ture of  the  lease.  See  §  48,  ante. 

As  to  guardian  joining  in  amicable  partition,  see  §  162,  post. 

Sec.  7  provides  that  guardians  may  purchase  other  real  estate  needful 
(adjoining)  to  that  already  owned  by  any  such  party  or  useful  to  the  busi- 
ness thereupon  carried  on,  or  when  necessary  to  protect  any  security  or 
rent  held  on  property  expose,d  to  judicial  sale.  It  seems  that  a  guardian 
already  has  power  to  purchase  real  estate  necessary  to  protect  any  security, 
&c.,  and  that  therefore  in  such  case  the  provisions  of  the  act  are  unneces- 
sary. It  is  clear,  however,  that  authority  would  be  required  for  the  guard- 
ian to  purchase  other  real  estate.  It  is  not  usual,  however,  for  a  guardian 
to  carry  on  business  for  a  minor,  and  since  this  clause  seems  to  relate  to 
a  purchase  of  adjoining  real  estate  necessary  to  carry  on  a  business,  it  is 
not  likely  that  this  clause  will  be  frequently  invoked  in  the  case  of  a 


§  64  MINORITY. 

The  interest  of  a  minor  may  be  (a)  in  the  entire  property,  (b) 
undivided,  and  in  each  case  may  be  (i)  an  estate  in  fee,  (2)  a 
life  estate,  (3)  a  remainder  contingent  or  vested,  (4)  an  execu- 
tory devise,  (5)  an  estate  for  years.  The  act  authorizes  a  sale, 
etc.,  in  any  of  these  cases.4 

It  is  important  to  accurately  ascertain  the  exact  quantum  of 
the  interest  of  the  minor  because  if  a  mistake  is  made  and  the 
interest  supposed  to  be  less  than  it  really  is,  no  advantage  of  the 
mistake  can  be  taken  to  defeat  the  title  of  the  purchaser  after 
confirmation,  deed  delivered  and  expiration  of  the  time  allowed 
for  an  appeal.5 

Necessity  of  Distinguishing  Proceedings  Under  Other  Acts. 

§  64.  The  chief  difficulty  in  practice  under  this  provision 
arises  from  the  fact  that  proceedings  for  the  sale  of  a  minor's 
interest  may  be  had  under  prior  acts,6  and  there  is  tendency  to 
confuse  the  proceedings,  the  petition  being  sometimes  so  worded 
that  it  cannot  be  ascertained  which  act  is  invoked.7  Since  the 
jurisdiction  to  make  the  decree  depends  entirely  on  statute,  it  is 
obvious  that  unless  the  petition  clearly  refers  to  some  one  of  the 
acts,  that  the  proceedings  will  be  null  and  void.  As  the  provisions 

minor's  interest.  By  Sec.  7,  it  is  also  provided  that  guardians  may  make 
and  take  conveyances  by  deed  acknowledged  in  court  without  public  sale  in 
order  to  square  and  adjust  lines  between  adjoining  owners.  Guardians 
may,  by  the  supplemental  Act  of  April  18,  1864,  P.  L,.  462,  Sec.  i,  make  and 
take  or  join  with  owners  of  other  undivided  interests  in  making  and  taking 
conveyances  by  deed  acknowledged  in  court  and  without  a  public  sale,  in 
order  to  change  in  part  or  in  whole  the  route  or  location  of  any  right  of 
way  or  passage  existing  over  and  upon  adjoining  or  other  lands,  the  re- 
quirement of  security  in  such  cases  to  be  in  the  discretion  of  the  court. 

(4)  For  a  case  of  the  authorization  of  the  sale  of  remainder  interests, 
see  Packer's  Est.,  7  Phila.  473  (1869),  s.  c.  26  L.  I.  380,  3  Brewst.  527. 

(5)  Gilmore  v.  Rodgers,  41  Pa.  120  (1861),  s.  c.  9  Pitts.  1,.  J.  209,  sub. 
nom.  Gilmore  v.  Rogers,  19  t,.  I.  28. 

(6)  Act  March  29,  1832,  P.  L.  190,  Act  June  16,  1836,  P.  L,.  682,  Act  April 
3,  1851,  P.  L.  305. 

(7)  E.  g.,  see  Kreimendahl  v.  Newhauser,   13   Super.   Ct.  606  at  608 
(1900).    Where  the  peitition  is  under  the  act  of  March  29,  1832,  P.  L,.  190, 
the  addition  of  an  avertment  that  the  sale  is  to  bar  contingent  remainders, 
etc.,  which  do  not  exist,  does  not  bring  the  case  within  the  act  of  1853. 
See  Wagner's  App.,  89  Pa.  303  ( 1879)  •    It  was  contended  in  this  case  that 
there  was  no  conversion  because  the  sale  was  under  the  act  of  April  18, 
1853,  P.  L.  503,  as  to  which  see  §  189,  post. 


64  LEGAL  DISABILITIES.  §  64 

of  the  Price  Act  as  to  the  devolution  of  the  purchase  money  are 
different  from  those  in  all  the  other  acts,  it  is  important  to 
clearly  fix  the  jurisdiction.8 

For  convenience  of  reference,  the  provisions  of  the  several 
acts  are  set  out  in  the  note,  so  the  reader  may  easily  observe  the 
distinctions  between  them.9 

(8)  For  a  discussion  of  the  special  provisions  relating  to  the  devolution 
of  the  proceeds  of  the  sale  of  the  interest  of  a  minor,  see  §  190,  post. 

(9)  By  Act  of  March  29,  1832,  P.  L,.  190  Sec.  31,  the  orphans'  court 
having  jurisdicton  of  the  account  of  the  guardian  may  authorize  a  sale  or 
mortgage  of  the  estate  of  a  minor — 

A.  On  application  of  the  guardian  setting  forth 

(1)  That  the  personal  estate  of  the  minor  is  insufficient 

(a)  For  his  maintenance  and  education. 

(b)  The  improvement  and  repair  of  other   parts  of  his 
real  estate. 

(2)  That  the  estate  of  a  minor  is  in 

(a)  Such  a  state  of  depreciation  and  decay  or 

(b)  So  unproductive  and  expensive 

that  it  would  be  to  the  interest  and  advantage  of  the  minor  to 
sell  it. 

(3)  Orphans'  court  of  county  where  real  estate  is  situate  to  have 

same  jurisdicton. 

B.  By  Sec.  33,  a  guardian  must — 

(1)  Exhibit  to  the  court  inventory  and  appraisement  of  real  and 

personal  estate. 

(2)  File  full  and  correct  statement  of  all  real  estate. 

(3)  No  authority  to  sell  to  be  granted  until  the  guardian  shall  have 

filed  a  bond  with  sufficient  securiety  to  be  approved  by  the 
court. 

(4)  No  real  estate  shall  be  disposed  of  contrary  to  the  terms  of 

any  marriage  settlement. 

(5)  The  mansion  house  or  the  most  profitable  part  of  the  estate 

shall  be  reserved  to  the  last. 

(6)  The  court  may  refer  the  case  to  an  examiner. 

(7)  Must  give  notice  to  minor. 

(8)  Sale  public  now  private  by  act  of  May  9,  1889,  P.  L.  182. 

(9)  Where  real  estate  is  situate  in  another  county,  court  having 

jurisdiction  of  the  account  of  the  guardian  must  make  a  pre- 
liminary order  as  to  the  necessity  of  the  sale  or  mortgage. 
By  Act  of  June  16,  1836,  P.  L.  682,  Sec.  i,  Guardian  may  make  public 
(may  be  private  by  Act  of  May  9,  1889,  P.  L.  182),  sale  of  minor's  real  es- 
tate under  order  of  Orphans'  Court  where — 

(i)  The  whole  or  any  part  of  the  real  estate  of  any  minor  is  in 

(a)  Such  a  state  of  dilapidation  and  decay,  or 

(b)  So  unproductive  and  expensive 


§  64  MINORITY.    NOTICE.  65 

(2)  That  it  would  be  to  the  interest  and  benefit  of  the  minor  to 

make  the  sale 

(3)  Purchaser  to  take  the  same  interest  minor  had 

(4)  Before  sale  approved,  guardian  to  file  a  bond  with  sufficient 

surety  to  be  approved  by  the  court. 

The  Act  of  March  16,  1847,  P.  L.  474  provides  —  "§  2.  The  orphans' 
court  in  and  for  any  city  and  county  of  this  commonwealth,  in  which 
vacant  ground  belonging  to  the  estate  of  any  minor  may  be  situated,  may, 
upon  application  of  a  guardian,  setting  forth  that  the  said  vacant  ground 
is  unproductive  and  expensive,  and  that  it  would  be  to  the  interest  and 
benefit  of  such  minor,  that  the  said  ground  should  be  let  on  ground-rent, 
it  shall  be  lawful  for  said  orphans'  court  to  make  a  decree  authorizing  the 
guardian  to  let  the  same,  or  any  suitable  part  thereof,  on  ground-rent, 
and  make  and  execute  the  proper  and  necessary  deeds  and  conveyances 
therefor,  reserving  thereout  such  a  yearly  rent  as  to  the  said  court  may 
seem  reasonable  and  just,  to  be  secured  in  the  usual  manner,  and  making 
the  principal  or  consideration-money,  to  become  payable  after  the  period 
at  which  the  said  minor  shall  become  of  full  age." 

By  Act  of  April  3,  1851,  P.  L.  305,  Orphans'  Courts  have  power  to  author- 
ize the  sale  of  real  estate  within  their  respective  counties. 

(1)  Upon  application  of  guardian,  the  interest  of  a  minor,  when  to 

the  interest  of  the  minor. 

(2)  Upon  application  of  tenants   for  life  upon  whose  estate  inter- 

ests of  minors  depend,  when  to  the  interest  of  the  minor. 
Trustee  to  be  appointed  to  make  sale. 

(3)  Sec.  2  provides,  upon  application  made,  day  to  be  appointed  for 

hearing,  of  which  thirty  days'  notice  to  be  given  to  all  par- 
ties in  interest,  legally  and  beneficially,  to  guardians  of  minors, 
and  if  application  by  the  guardian  to  the  minors  themselves 
or  their  next  of  kin,  if  any  residing  in  the  county. 

Sec.  3  regulates  the  manner  of  giving  notice  to  be  in  the  manner 
prescribed  by  §  52-53  of  the  Act  of  March  29,  1832,  P.  L.  190. 

Sec.  4,  every  application  to  be  in  the  form  of  a  petition  suf- 
ficiently describing  the  lands  and  the  names  of  the  persons 
interested.  Guardian  of  minor  to  be  appointed  if  the  minor 
shall  appear  on  the  day  of  hearing  by  guardian,  next  friend, 
or  next  of  kin,  the  appointment  of  the  court  to  be  void. 

Sec.  5  provides,  before  any  sale  shall  be  confirmed,  bond  to  be 
filed  with  two  or  more  sureties  in  double  the  amount  of  the 
sale,  to  be  approved  by  the  court,  and  that  no  sale  is  to  be 
void  because  of  any  misapplication  of  the  proceeds  of  the 
sale  or  because  of  an  erroneous  decision  by  the  court  that 
the  sale  was  to  the  interest  of  the  minors  or  cestui  que 
trust  interested. 

By  the  Price  Act,  courts  may  authorize  a  sale,  mortgage,  lease,  con- 
veyance on  ground  rent,  exchange,  parition,  etc.,  of  the  estate  of  a 
minor — 


66  LEGAL  DISABILITIES.  §  65 

Notice. 

§  65.  Where  the  minor  has  no  guardian,  a  guardian  must  be 
appointed  in  the  regular  way,  of  which  proceeding  the  minor 
or  next  of  kin  must  have  the  usual  notice.10 

If  the  minor  or  next  of  kin  fail  to  apply  for  a  guardian,  it 
seems  that  the  court  may  appoint  of  its  own  motion  on  notice, 
otherwise  the  jurisdiction  under  the  act  might  be  defeated. 
Where  the  property  is  held  in  trust  for  a  minor  cestui  que  trust, 
necessity  for  the  appointment  of  a  guardian  is  not  so  apparent. 
Since,  however,  in  all  cases  of  proceedings  under  the  act  relating 
to  a  trust,  notice  to  the  cestui  que  trust  is  probably  required,  it 
seems  that  even  here  the  court  would  require  the  appointment 
of  a  guardian  and  notice  to  him.11  The  guardian,  however,  of 
the  minor  need  not  give  notice  to  anyone  when  petitioning  for 
sale,  etc.,  and  notice  need  not  be  given  to  the  minor ;  his  guardian 
acts  for  him  and  receives  the  notice.  The  guardian  is  clearly  the 
one  to  make  the  petition  except  in  the  case  hereinafter  noted, 
where  a  minor  owns  an  undivided  interest. 

(1)  When  to  the  interest  and  advantage  of  the  minor. 

(2)  When  it  may  be  done. 

(a)  Without  injury  or  prejudice  to   any  trust,   charity,  or 

purpose  for  which  the  same  is  held, 

(b)  Without  the  violation  of  any  law  which  may  confer  an 

immunity  or  exemption   from  sale  or  alienation. 

(3)  The  court  making  order  need  not  have  jurisdiction  over  the  ac- 

count of  the  guardian  of  the  minor  if  it  has  jurisdiction  over 
the  land. 

(4)  Need  not  give  notice  to  minor;   notice  to  guardian  sufficient. 

(5)  May  be  public  or  private  sale. 

(6)  Proceeds  of  sale  devolve  as  real  estate. 

(7)  Guardian  to  file  bond  to  be  approved  by  the  court. 

(8)  By  public  or  private  sale  lien  of  debts  of  a  decedent  not  of  record 

are  discharged. 

(9)  The  title  of  the  purchaser  shall  be  a  fee  simple  title,  indefeasible 

by  any  party  or  persons  having  a  present  or  expectant  inter- 
est in  the  premises,  and  be  unprejudiced  by  any  error  in  the 
proceedings  by  the  court. 

(10)  Graham's  Est,  14  W.  N.  C.  31   (1883).     In  this  case  the  court 
made  a  decree  that  notice  be  given  to  minors  over  fourteen,  and  to  next 
of  kin  of  those  under  fourteen,  to  appear  and  apply  for  the  appointment 
of  a  guardian,  otherwise  an  application  would  be  made  to  the  court  to 
appoint  a  guardian  for  them. 

(11)  See  §  48,  ante. 


§§66, 67, 68, 7o   UNDIVIDED  INTEREST  OF  A  MINOR.  67 

Undivided  Interest  of  a  Minor. 

§  66.  The  case  where  it  is  necessary  to  make  a  sale,  etc.,  of 
the  undivided  interest  of  a  minor  is  of  frequent  occurrence  in 
practice.  The  undivided  interest  may  be,  as  we  have  seen,  (i) 
in  fee,  (2)  in  remainder,  contingent  or  vested,  (3)  an  executory 
devise,  (4)  a  term  of  years.  The  undivided  interest  may  be  dis- 
posed of  by  itself  or  the  proceedings  may  have  in  view  the  joining 
in  by  the  minor  in  a  sale,  etc.,  with  the  other  undivided  interests. 
The  decree  will,  of  course,  only  relate  to  the  undivided  interest, 
and  there  is  no  jurisdiction  under  the  act  to  compel  a  sale  by  other 
owners  who  are  sui  juris  upon  petition  of  the  minor.  Their 
joinder  must  be  voluntary.12 

Necessity  of  Joinder  in  the  Petition  by  Other  Interests. 

§  67.  It  is  not  necessary,  under  the  act,  for  the  owners  of 
the  other  undivided  interests  to  join  in  a  petition.  However,  it  is 
better  when  possible  to  have  them  do  so  because  the  joinder  is 
strong  inducement  to  the  court  to  make  the  sale.13  The  court  will 
frequently  decline  to  confirm  the  sale  unless  the  owners  of  the 
ether  interests  who  are  sui  juris  have  joined  in  the  petition. 

§  68.  In  Gilmore  v.  Rodgers,14  there  was  a  private  sale  of  an 
undivided  interest  authorized  where  the  other  parties  did  not 
join  in  the  petition.15 

§  70.  In  Pierce's  Estate,16  a  petition  was  presented  by  the 
guardian  of  a  minor  for  the  sale  of  his  undivided  interest.  The 
reporter,  in  the  syllabus,  said  the  cases  decided  that  in  such  case 
the  petition  should  be  joined  in  by  the  other  parties.  The  pe- 
tition was,  in  fact,  so  joined  in  but  the  language  of  the  court 

(12)  For  cases  of  sales  of  undivided  interest  of  a  minor,  see  Yard's 
Est.,  15  W.  N.  C.  422  (1885),  s.  c.  17  Phila.  436,  42.  L.  I.  17.    For  a  mort- 
gage of  an  undivided  interest  to  raise  money  to  pay  debts  of  a  decedent 
to  which  the  interest  of  the  minor  was  subject,  see  West  v.  Cochran, 
104  Pa.  482   (1884),  s.  c.  sub.  nom.  West  v.  Cochrane,  46  L.  I.  330,  31 
Pitts.   L.   J.   373- 

(13)  Pierce's  Case,  7  Phila.  475   (1869),  s.  c.  26  L.  I.   13,  sub.  nom. 
Clothier's  Pet.,  3  Brewst.  254.    In  some  jurisdictions  all  parties  in  interest 
are  required  to  join  in  the  petition  by  rule  of  court. 

(14)  41  Pa.  120  (1861;    s.  c.  9  Pitts.  L.  J.  209,  sub.  nom.  Gilmore  v. 
Rogers,  19  L.  I.  28. 

(15)  See  Reed  v.  Palmer,  53  Pa.  379   (1866). 

(16)  7  Phila.  475   (1869),  s.  c.  26  L,.  I.  13,  sub.  nom.  Clothier's  Pet., 
3  Brewst.  254. 


68  LEGAL  DISABILITIES.  §§  71,72 

hardly  warrants  the  statement  of  the  reporter.  Allison,  P.  J., 
adopted  the  statement  in  Gilmore  v.  Rodgers,17  that  the  consent 
of  those  of  age  was  persuasive  evidence  that  the  best  price  had 
been  obtained  and  a  circumstance  to  be  considered.  The  court 
went  on  to  say  that  the  administrator  of  the  decedent  should 
join,  the  property  being  subject  to  the  lien  of  debts  of  a  decedent 
not  of  record  (on  this  ground  there  was  jurisdiction  over  the 
interest  of  the  other  heirs),  but  appeared  to  grant  the  petition 
without  requiring  the  joinder  of  the  administrator.  The  court 
made  an  order  directing  the  guardian  to  sell  the  interest  of  the 
minors  as  guardian,  and  the  interest  of  the  other  heirs  of  the 
decedent  as  their  trustee.  Since,  however,  the  other  heirs  were 
apparently  of  age  and  fully  competent  to  join  in  the  deed  them- 
selves and  receive  their  share  of  the  purchase  money,  there  seems 
to  be  some  objection  to  such  a  form  of  decree.  The  practice  now 
is  to  authorize  the  guardian  to  join  with  the  other  parties  in  in- 
terest in  making  the  deed  upon  receipt  of  the  proportionate  share 
of  the  purchase  money  due  the  minor. 

Proceedings  by  Owner  of  Undivided  Interest  Sui  Juris  where  there  is  a 

Minor's  Interest. 

§  71.  Where  the  owners  of  the  other  undivided  interests  who 
are  sui  juris  are  willing  to  sell,  etc.,  and  the  minor  or  guardian 
is  unwilling  to  join  in  the  proposed  disposition,  it  seems  that 
there  is  no  jurisdiction  under  the  act.  The  court  has  no  power 
in  such  a  case  to  compel  the  minor  or  his  guardian  to  join  in, 
the  only  remedy  being  by  partition  proceedings.19  These  remarks 
only  apply  where  the  only  ground  of  jurisdiction  is  the  minority 
of  the  owner  of  the  interest.  Where  there  are  grounds  of  juris- 
diction extending  over  the  whole  title,  as  where  all  the  interests 
are  subject  to  the  lien  of  debts  of  a  decedent  not  of  record,  it 
seems  that  the  court  may  compel  the  non-consenting  undivided 
interests  to  join  in  the  sale. 

Sale  of  Undivided  Interest  of  a  Minor  to  Another  Tenant  in  Common. 

§  72.  It  is  frequently  desirable  for  the  minor  to  sell  his  share 
to  another  tenant  in  common  who  is  desirous  of  acquiring  the 
whole  of  the  property,  and  in  such  a  case,  where  it  is  expedient, 
the  court  will  confirm  a  sale  of  this  kind. 

(17)  41  Pa.  120  (1861). 
(19)  See  §  22  ante. 


§§  73»  74  GUARDIAN  IN  ONE  COUNTY,  LAND  IN  ANOTHER.         69 

In  Loughery's  Estate,20  the  testator  provided  that  it  was 
his  wish,21  that  certain  of  his  properties  (mentioning  them) 
should  be  purchased  by  some  of  his  other  children  at  a  price 
agreed  upon.  A  price  was  agreed  upon,  and  some  of  the 
parties  in  interest  being  minors,  the  court  entered  a  decree 
directing  the  executors  and  guardians  to  execute  and  deliver  the 
necessary  deeds  upon  security  first  being  entered.  The  petition 
was  for  "sale  and  delivery  of  deeds,"  and  does  not  state  by 
whom  it  was  presented.  The  case  is  obscurely  reported  but 
clearly  authorizes  the  proposition  that  a  sale  will  be  ratified  by 
the  guardian  of  an  undivided  interest  to  another  tenant  in  com- 
mon.22 

Reasons  for  Sale  of  an  Undivided  Interest. 

§  73.  It  will  always  be  to  the  interest  and  advantage  of  the 
minor,  as  well  as  the  other  parties,  to  sell  in  order  to  avoid  par- 
tition proceedings,  and  in  this  case  an  averment  should  be  added 
that  the  price  realized  is  as  much  as  could  be  realized  within  the 
time  usually  necessary  for  the  completion  of  partition  proceed- 
ings. 

Guardian  Appointed  in  One  County,  Land  in  Another. 

§  74.  Where  the  guardian  is  appointed  in  one  county,  and 
the  land  belonging  to  the  minor  lies  in  another  county,  the  appli- 
cation under  the  act  for  leave  to  sell  must  be  made  to  the  Orphans 
Court  of  the  county  where  the  land  lies,23  and  no  preliminary 
application  need  be  made  to  the  court  which  appointed  the  guar- 
dian.24 And  if  in  such  case  the  application  is  made  to  the  court  of 
the  county  where  the  guardian  is  appointed,  the  petition  will  be 
refused.25 

(20)  12  D.  R.  386  (1903). 

(21)  The  equitable  conversion   here  was   immaterial. 

(22)  See  also  Burk's  Est.,  15  Pa.  C.  C.  9,  s.  c.  3  D.  R.  384   (1894), 
where  a  sale  was  confirmed  after  reference. 

(23)  Morrison  v.  Nellis,  115  Pa.  41    (1887),  s.  c.  19  W.  N.  C.  20,  44 
L.  I.  187,  34  Pitts.  L.  J.  274,  14  Lane.  1,.  R.  96. 

(24)  See  Orwig's  Est.,  7  Pa.   C.  C.   71    (1889),  s.  c.  46  L.   I.  99,   19 
Phila.  158,  case  of  a  mortgage. 

(25)  Seiger's  Est.,  19  W.  N.  C.  404  (1887).    Petition  for  decree  author- 
izing a  lease. 


7o  LEGAiv  DISABIUTIES.  §  74 

Under  Sec.  3,  it  is  apparently  not  necessary  for  the  guardian 
to  give  security  in  more  than  one  county.26 

It  is  the  duty  of  the  guardian  to  render  his  account  to  the 
court  in  which  security  was  entered.  If  security  has  been  en- 
tered only  in  the  court  where  he  was  appointed,  and  the  court  of 
the  county  where  the  land  lay  authorized  the  sale  or  mortgage 
upon  certificate  of  security  having  been  entered  in  the  other 
county,  he  seems  to  be  under  no  obligation  to  render  an  account 
in  any  court  except  that  of  his  appointment.  If,  however,  as 
sometimes  happens,  he  gives  additional  security  in  the  county 
where  the  land  lies,  then  it  seems  clear  that  he  must  render  an 
account  to  the  court  of  that  county  before  his  obligation  under 
the  bond  can  be  discharged. 

In  Packer's  Est.,27  the  guardian  of  a  minor  appointed  in  Phila- 
delphia County  applied  to  the  Court  of  Berks  County  for  the  sale 
of  the  interest  of  the  minor  as  remainderman  in  land  in  that 
County  and  gave  security  there  for  the  principal  money.  A 
successor  to  this  guardian  was  appointed  in  Philadelphia  County. 
The  decree  in  Berks  County  was  to  hold  the  amount  of  the  prin- 
cipal money  during  the  lives  of  the  life  tenants,  pay  them  their 
share  of  the  interest,  and  after  their  death  to  account  for  the 
same  according  to  law.  It  was  held  that  the  Orphans'  Court  of 
Philadelphia  County  would  not  make  an  order,  on  the  first 
guardian  to  pay  over  the  money  in  his  hands  to  his  successor 
appointed  in  Philadelphia  County  because  he  was  trustee  under 
the  court  in  Berks  County  for  all  parties  in  interest  and  bound 
to  account  in  that  court. 

Pierce,  J.,  said  that  the  person  authorized  under  the  Act  of 
1853  to  sell  the  real  estate  does  not  simply  sell  it  as  executor, 
committee  or  guardian  but  by  virtue  of  the  appointment  of  the 
court  he  becomes  clothed  with  a  new  trust  in  which  he  represents 
the  interests  of  all  parties  concerned,  and  is  to  make  application 
of  the  purchase  money  according  to  the  trust  and  decree  of  the 
court  under  whose  direction  the  sale  was  to  be  made. 

By  the  Act  of  May  21,  1901, 28  where  the  land  is  in  two  or 
more  counties,  the  orphans'  court  of  either  county  shall  have 
power  to  decree  a  sale  or  mortgage  of  the  minor's  interest  for 

(26)  For  a  discussion  of  this  point,  see  §  184,  post. 

(27)  3  Brewst.  527   (1869),  7  PhUa.  473,  26  L.  I.  380. 

(28)  P.  Iy.  272.    See  Appendix  A  post. 


§75  FOREIGN  GUARDIAN.  71 

the  payment  of  debts  or  other  purposes.  Notice,  where  required, 
to  be  given  in  both  counties,  and  certified  copies  of  the  proceed- 
ings to  be  filed  in  the  orphans'  court  of  each  county,  and  if  pur- 
chase money  obligation  is  taken,  the  same  to  be  recorded  in  each 
county.  It  is  doubtful  how  far  the  words  "other  purposes"  in  this 
act  refer  to  the  cases  provided  for  in  the  Price  Act  or  whether 
its  provisions  are  to  be  confined  solely  to  sales  for  the  payment 
of  debts.  It  is  to  be  observed  that  the  jurisdiction  is  confined 
to  the  Orphans'  Court,  and  in  that  respect  at  least  being  not  co- 
extensive with  the  provisions  of  the  Price  Act. 

Foreign  Guardian. 

§  75.  It  appears  that  a  foreign  guardian  may  sell  under  the 
Price  Act  when  the  certificate  required  by  the  act  has  been  pro- 
duced showing  that  the  guardian  has  given  adequate  security  to 
the  court  having  jurisdiction  over  him.29  The  certificate  required 
by  the  provisions  of  the  Act  of  April  21,  i856,30  should  also  be 
filed.  It  is  to  be  observed  that  the  act  upon  which  the  decision 
was  based  provides  for  the  removal  of  the  property  of  the  minor. 
There  is  some  doubt,  therefore,  whether  it  is  proper  to  construe 
the  Price  Act  so  as  to  authorize  a  sale  by  a  foreign  guardian. 
Since,  however,  the  court  has  full  jurisdiction  over  the  land,  and 
may  appoint  whom  it  pleases  to  make  the  sale,  there  seems  to  be 
no  reason  why  a  foreign  guardian  should  not  be  authorized  to 
sell,  etc.  The  practice  on  this  point  is  not  clear,  and  some  courts 
refuse  to  recognize  the  right  of  the  foreign  guardian  to  sell,  etc. 

Lunatics  and  Habitual  Drunkards.     Provisions  of  the  Price  Act. 
§  76.     The  act  also  authorizes  the  sale,  etc.,  of  the  land  of  a 

(29)  Goldsmith's  Est.,  13  Phila.  389  (1880),  s.  c.  37  L.  I.  465. 

(30)  P.  L.  495,  as  amended  by  Act  of  May  13,  1889,  P.  L.  190.     This 
act  provides  that  a  foreign  guardian  may  sue  for  and  recover  property 
of  his  non-resident  ward  upon  satisfactory  proof  by  certificates  according 
to  act  of  congress  that  he  has  given  security  in  double  the  value  in  the 
domicile,  the  benefit  of  which  shall  only  extend  to  citizens  of  any  state 
where  similar  acts  have  been  or  shall  be  passed ;  thirty  days'  notice  to  resi- 
dent executor,  administrator  or  guardian  to  be  given  and  the  court  may 
reject  the  application  when  they  think  it  is  not  to  the  interest  of  the 
ward. 


72  LEGAL  DISABILITIES.  §  76 

lunatic  or  habitual  drunkard  so  duly  found  by  inquisition.32  The 
last  phrase  "so  duly  found  by  inquisition,"  etc.,  obviously  ap- 
plies to  the  lunatic  as  well  as  to  the  habitual  drunkard.  The  pe- 
tition should  always  be  made  by  the  committee  of  the  lunatic 
who  is  the  proper  party  interested,33  and  may  also  be  made  by 
the  persons  who  would  probably  be  entitled  to  the  real  estate 
after  the  death  of  the  lunatic  or  habitual  drunkard  and  by  mem- 
bers of  his  family  when  the  committee  decline  to  proceed.  The 
committee,  however,  should  make  the  sale,  sign  the  deed  and  file 
the  bond,  give  the  security  and  receive  the  purchase  money. 

It  is  clear  that  the  court  cannot  exercise  this  jurisdiction  until 
the  inquisition  proceedings  have  been  duly  concluded  in  the 
Common  Pleas  in  favor  of  the  lunacy34  or  habitual  drunkenness. 

The  case  of  a  trustee  for  a  lunatic  cestui  que  trust  does  not 
seem  to  come  under  this  provision  because  the  trustee  may  pro- 
ceed under  the  clause  relating  to  trusts  without  reference  to  the 
character  of  the  cestui  que  trust.34a  The  property  of  the  lunatic 
or  habitual  drunkard  may  also  be  disposed  of  under  other  acts 
which  must  be  carefully  distinguished. 

(32)  Committees  of  lunatics   (by  Sec.  /)  may  make  and  take  convey- 
ances by  deed  acknowledged  in   court  without  public  sale  in  order  to 
square  and  adjust  lines  between  adjoining  owners;    may  make  and  take 
conveyances  to  perfect  the  partition  of  real  estate  held  in  joint  tenancy, 
coparcenary  or  in  common  with  others ;    may  purchase  other  real  estate 
needful   (adjoining)  to  that  already  owned  by  any  such  party  or  useful 
to  the  business  thereupon  carried  on,  or  when  necessary  to  protect  any 
security  or  rent  held  on  property  exposed  to  judicial  sale.     Committees 
also,  by  supplement  of  April  18,  1864,  P.  L.  462,  Sec.  i,  may  make  and 
take  or  join  with  owners  of  other  undivided  interests  in  making  and 
taking  conveyances  by  deed  acknowledged  in  court  and  without  a  public 
sale,  in  order  to  change  in  part  or  in  whole  the  route  and  location  of 
any  right  of  way  or  passage  existing  over  and  upon  adjoining  or  other 
lands,  the  requiring  of  security  in  such  case  to  be  in  the  discretion  of 
the  court. 

(33)  For  a  case  of  a  decree  authorizing  a  sale  on  ground  rent,  see 
Kennelly's  Est,  17  Phila.  99  (1884),  s.  c.  41  L.  I.  114. 

(34)  Application  of  Fidelity  Trust  Co.,  16  Phila.  645  (1882),  s.  c.  40  L. 
I.  484. 

(34a)  See  §  134  post.  For  a  case  of  an  attempted  sale  by  trustee  for 
a  lunatic  cestui  que  trust,  see  Hirst's  Est.,  147  Pa.  319  (1892),  where 
the  sale  was  held  void  because  there  was  no  notice  to  the  cestui  que 
trust  or  committee. 


§§  77>  78       LUNATICS  AND  HABITUAL  DRUNKARDS.  73 

Act  of  1836. 

§  77.  Under  the  Act  of  June  13,  i836,35  land  of  a  lunatic 
may  be  sold,  by  proceedings  in  the  common  pleas,  for  the  pay- 
ment of  his  debts,  the  maintenance  of  his  family,  and  the  educa- 
tion of  his  minor  children,  and  it  must  appear  on  the  face  of 
the  petition  that  notice  has  been  given  to  the  wife,  if  any,  of  the 
lunatic,  and  to  his  or  her  next  of  kin.36  Under  this  act,  how- 
ever, the  court  could  not  decree  a  private  sale,  jurisdiction  as  to 
which  is  now  conferred  by  the  Act  of  April  27,  1903."  It  is 
important  to  remember  the  provisions  of  the  Act  of  1836,  be- 
cause the  Act  of  1853  cannot  be  used  to  authorize  a  sale  for  the 
purposes  set  out  in  the  Act  of  i836.88 

The  same  act  also  provides  for  the  case  of  a  lunatic  vendor 
or  vendee  under  articles  of  agreement  and  for  specific  perform- 
ance in  such  cases.  The  common  pleas  equitable  jurisdiction 
over  lunatics  is  limited  by  statute,  and  must  be  exercised  in  ac- 
cordance with  the  provisions  of  the  act.39 

Notice  in  the  Case  of  Lunatics. 

§  78.  There  is  some  doubt  as  to  the  notice  which  should  be 
given  in  the  case  where  the  committee  of  a  lunatic  proceeds  under 

(35)  P.  L.  589,  Sees.  22-24.    This  act  provides  that  the 

Court  of  Common  Pleas  may  order  public    (now  private)    sale 
or  mortgage 
Of  the  real  estate  or  such  part  of  the  real  estate  of  a  lunatic 

or  habitual  drunkard  as  the  court  may  deem  expedient, 
if  personal  estate  insufficient  for  his  support 
upon  petition  of  the  committee 
to  court  having  jurisdiction  of  the  account. 
Application  supported  by  oath  to  be  accompanied  with 

(a)  Inventory  of  real  and  personal  estate 

(b)  Statement  of  debts  due 

(c)  Estimate  of  the  annual  sum  probably  necessary  for 

support  and  maintenance  of  the  lunantic,  his  family, 
and  education  of  his  children,  if  any. 

Notice  to  be  given  wife  or  next  of  kin.     Section  28  provides 
for  case  where  land  is  situate  in  another  county. 

(36)  Bennett  v.  Hayden,  145  Pa.  586   (1892)  ;    Mitchell  v.  Spaulding, 
20  Super.  C.  296  (1902). 

(37)  P.  L.  325. 

(38)  Bennett  v.  Hayden,  145  Pa.  586  (1892). 

(39)  Halderman's  App.,  104  Pa.  251  (1883)  ;   Halderman  v.  Young,  107 
Pa.  324  (1885). 

6 


74  LEGAL  DISABILITIES.  §  79 

the  Price  Act  for  the  sale,  etc.,  of  a  lunatic's  estate.  There  is 
nothing  in  the  act  which  provides  for  notice  to  the  heirs  of  the 
lunatic  or  to  his  next  of  kin,  and  it  seems,  since  the  lunatic  is  the 
owner  in  fee,  and  there  is  therefore  no  one  interested  but  him- 
self, that  there  is  no  occasion  to  give  notice  to  his  heirs. 

Since,  however,  the  Act  of  June  13,  i836,40  providing  for  the 
sale  of  the  land  of  a  "lunatic  especially  directs  that  notice  shall 
be  given  to  the  wife,  if  any,  of  the  lunatic,  and  to  his  or  her  next 
of  kin,*0a  the  difficulty  is  in  determining  whether  this  provision 
of  the  Act  of  1836  is  to  be  followed  in  conducting  proceedings 
under  the  Price  Act.  There  is  no  authority  upon  the  proposi- 
tion, and  it  seems  as  if  under  the  strict  construction  of  the  pro- 
visions of  the  Act  of  1853  that  there  is  no  occasion  whatever 
to  give  notice  to  the  wife,  if  any,  or  the  heirs  of  the  lunatic  or 
his  next  of  kin.  It  is  better  practice,  however,  to  give  such  notice, 
and  the  court  may  well  require  it  in  any  case. 

Property  of  a  Weak-Minded  Person. 

§  79.  Under  the  Act  of  May  28,  1907 ,41  the  court  may  author- 
ize a  guardian  of  a  weak-minded  person  to  sell,  mortgage,  lease 
or  convey  on  ground  rent  any  part  or  all  of  the  real  estate  of 
the  ward.42 

(40)  P.  L,.  589,  22-24. 

(40a)  The  proceedings  under  the  Act  of  1836  are  accordingly  void  if 
no  such  notice  be  given,  Patchin  v.  Seward  Coal  Co.,  226  Pa.  159  (1910). 

(41)  P.  L.  292,  amending  the  Act  of  June  19,  1901,  P.  L.  574,  Sec.  2, 
which  amended  the  Act  of  April  28,  1899,  P.  L.  112,  which  amended  Sec. 
6  of  the  Act  of  June  25,  1895,  P.  L,.  300.    The  provisions  of  the  act  follow 
the  Price  Act  very  closely,  and  are  given  in  full  in  the  appendix.     See 
Act  of  April  27,   1909.  P.  L.  185,  providing  for  a  case  where  a  weak- 
minded  person  resides  out  of  the  county,  following  Price  Act,  expressed 
as  a  supplement  to  the  Act  of  June  25,  1895,  P.  L.  300. 

(42)  There  are   several  other  acts   of   minor  importance   relating   to 
lunatics,  which  are  as  follows: 

Act  of  April  16,  1849,  P.  L.  663,  Sec.  i,  relates  to  confirmation  by  court 
of  Common  Pleas  of  sale  of  standing  timber  on  land  of  a  lunatic  or 
habitual  drunkard. 

By  the  Act  of  June  26,  1895,  P.  L,.  381,  it  is  provided  that  in  all  pro- 
ceedings or  actions  at  law  or  in  equity  now  pending  or  hereafter  to  be 
brought,  where  the  defendant  is  a  lunatic,  the  court  may  appoint  a  com- 
mittee ad  litem.  The  Act  of  April  n,  1866,  P.  L.  780,  seems  to  provide 
for  a  sale  by  the  Common  Pleas  in  the  case  of  a  husband  or  wife  of  a 
person  non  compos  mentis,  but  it  is  very  ambiguous,  so  that  it  is  diffi- 


§  80  MARRIED  WOMEN.  75 

Married  Women. 

§  80.  Since  a  married  woman  cannot,  at  common  law,  convey 
her  real  estate  without  the  joinder  of  her  huband  in  the  deed,  it 
follows  that  she  might  be  considerably  embarrassed  with  regard 
to  the  disposition  of  her  property  when  her  husband  is  unable  to 
join  in  the  deed.  Two  cases  of  this  kind  are  provided  for  in  the 
act :  ( i )  where  the  husband  has  abandoned  her  for  two  years,  (2) 
where  he  has  been  absent  and  unheard  of  for  seven  years.43 

cult  to  state  whether  it  provides  for  the  sale  of  the  interest  of  the  hus- 
band or  wife  free  of  the  claim  for  dower  or  curtesy,  or  whether  it  pro- 
vides for  the  sale  of  the  interest  of  the  lunatic  husband  or  wife.  No 
case  on  this  act  has  been  found.  Act  of  March  28,  1879,  P.  I/.  14,  Sec.  i, 
provides  that  the  wife  of  a  lunatic  may  release  her  dower  in  land  which 
has  been  conveyed  by  the  committee  of  the  lunatic  under  order  of  court. 
By  Act  of  May  24,  1887,  P.  L,.  202,  the  overseers  of  the  poor  of  a  county, 
township  or  borough  may  mortgage  or  sell  or  dispose  of  by  public  or 
private  sale,  the  real  estate  of  an  insane  pauper  unmarried  and  without 
children  chargeable  upon  them,  with  the  consent  of  the  Court  of  Quarter 
Sessions. 

(43)  Several  other  cases  in  which  a  married  woman  may  convey  with- 
out the  joinder  of  her  husband  are  provided  for  as  follows:  By  Act 
of  May  4,  1855,  P.  L.  430,  Sec.  2,  where  a  husband,  from  drunkenness, 
profligacy,  or  other  cause,  shall  neglect  or  refuse  to  provide  for  his 
wife  or  shall  desert  her,  she  shall  have  the  rights  of  a  feme  sole  trader 
and  may  therefore  convey  her  real  estate  without  the  joinder  of  her 
husband,  Wilson  v.  Coursin,  72  Pa.  306  (1872),  and  it  is  not  necessary 
for  her  to  be  decreed  a  feme  sole  trader.  The  only  effect  of  the  absence 
of  the  decree  is  put  upon  the  party  claiming  under  her  deed  the  burden 
of  showing  affirmatively  the  existence  of  the  facts  necessary  to  bring 
her  within  the  terms  of  the  law,  Elsey  v.  McDaniel,  95  Pa.  472  (1880). 
It  would  be  very  unsafe  to  take  such  a  title  without  the  previous  decree 
of  the  court  declaring  her  a  feme  sole  trader,  as  it  might  be  subse- 
quently impossible  to  prove  the  existence  of  the  facts  necessary  to  sus- 
tain the  conveyance.  It  is  probable  also  that  the  wife  may  make  a  mort- 
gage under  the  provisions  of  this  act.  No  decision  as  to  this  has  been  found. 
A  married  woman,  trustee,  may  convey  the  trust  estate  without  joinder 
of  her  husband  as  if  she  were  a  feme  sole,  see  Act  of  April  22,  1891, 
P.  L.  25,  Sec.  i.  By  Act  of  July  9,  1897,  P.  L,.  212,  a  married  woman, 
living  separate  from  her  husband  under  articles  of  separation  duly  exe- 
cuted and  recorded,  in  which  the  husband  has  released  all  interest  in  the 
real  estate  of  his  wife,  may  convey  such  real  estate  or  any  other  as  if 
she  were  a  feme  sole  without  the  joinder  of  her  husband.  By  Act  of 
June  3,  1911,  P.  L.  631,  a  married  woman  may  convey  to  her  husband 
as  if  she  were  a  feme  sole  trader.  This  act  declared  unconstitutional  as  to 
prior  conveyances  in  Buchanan  v.  Corson,  51  Super.  Ct.  558  (1912);  see 
Howells  v.  Wery,  40  Pa.  C.  C.  586  (1913). 


76  LEGAL  DISABILITIES.  §  81 

The  petition  should  set  forth  the  sale  and  ask  for  permission 
to  convey  without  the  joinder  of  her  husband  owing  to  one  or 
other  of  the  circumstances  specified. 

A  married  woman  may,  under  the  provision  of  Sec.  7,  make 
and  take  conveyances  by  deed  acknowledged  in  court  without 
public  sale  in  order  to  square  and  adjust  lines  between  adjoining 
owners ;  may  make  and  take  conveyances  to  perfect  the  partition 
of  real  estate  held  in  joint  tenacy,  coparcenary  or  in  common 
with  others;  may  purchase  other  real  estate  needful  (adjoining) 
to  that  already  owned  by  any  such  party  or  useful  to  the  busi- 
ness thereupon  carried  on,  or  when  necessary  to  protect  any  se- 
curity or  rent  held  on  property  exposed  to  judicial  sale. 

By  the  supplement  of  April  18,  i864,44  a  married  woman 
may  make  and  take  or  join  with  owners  of  other  undivided  in- 
terests in  making  and  taking  conveyances  by  deed  acknowledged 
in  court  and  without  a  public  sale,  in  order  to  change  in  part  or 
in  whole  the  route  and  location  of  any  right  of  way  or  passage 
existing  over  and  upon  adjoining  or  other  lands.  Security  in 
such  case  to  be  required  in  the  discretion  of  the  court.  These 
provisions  are  unnecessary  when  the  husband  can  join  in,  or 
the  wife  may  act  without  his  joinder  under  any  of  the  acts  of 
assembly  referred  to.  It  is,  of  course,  obvious  that  a  wife  may 
purchase  real  estate  without  the  joinder  of  her  husband,  and  so 
much  of  the  act,  therefore,  as  relates  to  that,  is  clearly  unnec- 
essary.44* The  act  does  not  seem  to  provide  for  the  case  of  a 
woman  with  a  lunatic  husband.45 

Married  Men. 

§  81.     The  act  provides  for  the  case  of  a  man  whose  wife  is 

(44)  P.  L,.  462,  Sec.  i. 
(443)  See  §  24,  ante. 

(45)  The  Act  of  May  25,  1878,  P.  L.  154,  provides  as  follows:    "That 
from  and  after  the  passage  of  this  act,  any  married  woman  whose  husband 
has  been  duly  found  to  be  a  lunatic  by  a  court  of  competent  jurisdiction 
within  this  commonwealth,  and  who  owns  lands  as  her  separate  estate  in 
this  commonwealth,  in  fee  simple  or  otherwise,  may  dispose  of  the  same  by 
deed  or  otherwise,  or  bind  the  same  by  mortgage,  as  fully  and  completely  as 
she  could  if  she  were  a  feme  sole,  without  her  husband  joining  in  or  con- 
senting to  said  deed  or  mortgage,  subject  nevertheless  to  the  rights  of  the 
husband  under  the  intestate  laws  of  this  commonwealth:    Provided,    That 
the  Court  of  Common  Pleas  of  the  proper  county  may,  upon  the  petition  of 
the  committee  of  the  husband,  authorize  the  sale  of  his  rights  to  or  interest 
in  such  real  estate." 


§  8 1  MARRIED  MEN.  77 

a  lunatic  or  a  minor.45a  It  is  not  necessary  to  proceed  under  the 
act  in  the  case  of  a  husband  with  a  wife  under  age,  since  the 
Act  of  March  22,  i865,45b  by  which  her  execution  and  ac- 
knowledgment of  a  deed  of  his  real  estate  is  valid  notwith- 
standing her  minority.  In  the  case  of  a  man  with  a  lunatic  wife, 
there  is  no  requirement  that  she  should  be  so  found  by  inquisition 
and  he  can  petition  for  permission  to  convey  without  the  joinder 
of  his  wife,  setting  forth  the  fact  of  her  lunacy,  and  upon  that 
being  shown,  the  court  can  authorize  the  sale  without  other  pro- 
ceedings. Since  in  this  case  the  wife  is  entitled  to  dower  at 
common  law,  security  should  be  entered  for  the  protection  of 
the  estate  of  the  lunatic  wife,  if  she  should  survive  her  husband. 
If  the  husband  is  abandoned  by  his  wife  or  she  is  absent  and  un- 
heard of  for  seven  years,  or  is  a  habitual  drunkard,  the  case  is 
not  provided  for  and  the  husband  would  not  be  able  to  dispose 
of  his  property.46  As  any  one  of  these  misfortunes  may  easily 
happen  to  a  married  man,  the  act  seems  to  be  defective  in  so 
far  as  it  does  not  provide  for  such  contingencies.461 

(45a)  The  case  of  a  married  man  with  an  insane  wife  is  provided  for 
by  the  Act  of  October  28,  1851,  P.  L.  (1852)  725,  Sec.  7,  which  reads  as 
follows :  "That  when  any  married  woman  in  this  commonwealth  hath 
become  insane,  it  shall  be  lawful  for  her  husband  upon  application  to  the 
Court  of  Common  Pleas  of  the  proper  county  to  select  and  appoint  three 
discreet  and  intelligent  persons,  one  of  whom  shall  be  a  practicing  phy- 
sician, who  shall  make  an  examination,  personal  or  otherwise,  of  such 
alleged  insanity,  and  report  the  facts  to  the  court,  and  if  the  said  court  be 
fully  satisfied  that  the  said  married  woman  is  insane,  and  approve  the 
said  report,  the  same  shall  be  filed  of  record  in  said  court,  and  the 
husband  shall  thenceforth,  upon  giving  good  and  sufficient  security  to 
the  commonwealth  for  the  faithful  performance  of  his  trust,  have  full 
power  to  transact  all  business  relating  to  the  management  or  disposition 
of  his  or  her  real  and  personal  estate,  in  as  full  and  ample  a  manner  as 
he  might  or  could  do  if  his  said  wife  was  sane,  and  gave  her  full  con- 
sent thereto." 

(45b)  P.  L.  30. 

(46)  See  J  62,  ante. 

(46a)  An  absent  husband  who  is  shipwrecked  or  by  sickness  or  other 
casualty  unable  to  maintain  himself,  may  sell  or  mortgage  so  much  of 
his  real  estate  as  shall  be  necessary  to  relieve  him  and  bring  him  home 
again  to  his  family,  Act  Feb.  22,  1718,  i  Sm.  L.  99,  Sec.  3.  The  act 
does  not  tell  us  how  a  shipwrecked  husband,  cast  away,  for  instance, 
on  the  South  Sea  Islands,  could  mortgage  or  convey  his  Pennsylvania 
real  estate  so  as  to  raise  the  money  to  get  home. 


78  LEGAL  DISABILITIES.  §§82, 83 

Corporations. 

§  82.  Corporations  are  referred  to  in  several  places  in  the 
act  apparently  authorizing  them  to  petition  for  a  sale,  etc.  Where 
a  corporation  is  trustee  and  proceeds  as  trustee,  its  character  as  a 
corporation  disappears  in  its  character  as  a  trustee,  and  it  is  in  the 
same  position  as  an  individual  trustee.  Where,  however,  it  is  not 
a  trustee  but  is  merely  acting  with  respect  to  the  corporate  prop- 
erty, several  questions  arise,  as  follows :  ( i )  as  to  the  corporate 
capacity  to  convey,  (2)  as  to  defects  in  title  unconnected  with  the 
character  of  the  corporation,  (3)  holdings  in  excess  of  the  amount 
fixed  by  law,  (4)  charitable,  religious,  etc.,  associations. 

Corporation  has  Capacity  to  Convey. 

§  83.  So  far  as  the  capacity  of  a  corporation  to  convey  is 
concerned,  the  provisions  of  the  act  seem  unnecessary  because  a 
corporation  has  power  as  a  corporation  to  freely  dispose  of  all 
its  real  estate  unless  restrained  by  statute  or  some  provisions  of 
its  charter.  This  conclusion  is  further  strengthened  by  the  pro- 
vision of  the  act  in  Sec.  2,  that  nothing  in  the  act  contained  shall 
be  taken  to  affect  or  impair  any  rights  or  powers  otherwise  ex- 
isting in  any  person  or  corporation  to  sell.47  If  there  is  a  defect 
in  the  title,  then  of  course  the  corporation  will  proceed  because 
of  the  defect,  just  as  an  individual  would,  and  not  because  it  is 
a  corporation.  A  few  of  the  statutes  conferring  corporate  capac- 
ity to  convey  are  referred  to  in  the  note.48 

(47)  See  §  24,  ante. 

(48)  Iron  and  other  manufacturing  and  mining  corporations  may  mort- 
gage their  property,  Act  June  n,  1867,  P.  L.  1372,  Sec.  i.     Mining  com- 
panies incorporated  under  the  Act  of  1854,  April  21,  P.  L,.  437,  may  sell 
real  estate  by  board  of  directors,  subject  to  consent  of  a  majority  of 
the  stockholders  obtained  at  a  special  meeting,  Act  of  March  27,  1865, 
P.  L.  34,  Sec.  i.    Directors  of  mining  companies  incorporated  under  the 
Act  of  July  18,  1863,  may  not  sell  any  mine  or  mines  without  the  consent 
of  a  majority  of  the  stockholders  (1871)  May  8,  P.  L.  265,  Sec.  2.    Real 
estate  companies  may  hold,   sell  and  convey   real   estate,  Act  April   17, 
1876,  P.  L,.  30,  Sec.  10.     Title  companies  may  purchase  and  sell  real  es- 
tate, Act  May  9,  1889,  P.  L.  159,  Sec.  i,  Cl.  8.    Corporations  now  under 
Act  of  April  29,  1874,  P.  L.  73,  Sec.  i,  Cl.  4,  and  its  supplements,  have 
power  to  "hold,  purchase  and  transfer  such  real  and  personal  property  as 
the  purposes  of  the  corporation  require,  not  exceeding  the  amount  limited 
by  its  charter  or  by-laws."     All  corporations  may  mortgage  real  estate, 
Act  May  21,  1889,  P.  L,.  257,  Sec.  i.    Insurance  companies  may  receive, 


§  83  CORPORATIONS.  79 

Corporations  may,  by  Sec.  7,  make  and  take  conveyances  by 
deed  acknowledged  in  court  without  public  sale  in  order  to  square 
and  adjust  lines  between  adjoining  owners ;  may  make  and  take 
conveyances  to  perfect  the  partition  of  real  estate  held  in  joint 
tenancy,  coparcenary  or  in  common  with  others;  may  purchase 
other  real  estate  needful  (adjoining)  to  that  already  owned  by 
any  such  party  or  useful  to  the  business  thereupon  carried  on,  or 
when  necessary  to  protect  any  such  security  or  rent  held  on 
property  exposed  to  judicial  sale.  Provided,  that  no  corporation 
shall  be  so  authorized  to  purchase  beyond  its  charter  license.49 

By  the  supplement  of  April  18,  i864,50  corporations  may  make 
and  take  or  join  with  owners  of  other  undivided  interests  in 
making  and  taking  conveyances  by  deed  acknowledged  in  court 
and  without  a  public  sale,  in  order  to  change  in  part  or  in  whole 
the  route  and  location  of  any  right  of  way  or  passage  existing 
over  and  upon  adjoining  or  other  lands,  security  to  be  required 
in  such  case  in  the  discretion  of  the  court.  These  provisions  seem 
unnecessary,  as  a  corporation  may  perform  any  of  these  acts 
under  its  ordinary  corporate  powers. 


hold  and  convey  real  estate  in  certain  cases  under  Act  of  May  28,  1907, 
P.  Iy.  296.  By  Act  of  April  15,  1891,  P.  L.  15,  Sec.  I,  amending  "Act  of 
June  25,  1885,  P.  L.  178,  which  amended  the  Act  of  April  20,  1874,  P. 
L.  no,  Common  Pleas  may  authorize  public  or  private  sale  of  real  estate 
belonging  to  a  corporation  which  has  been  dissolved  upon  petition  of  a 
shareholder  or  corporator,  with  notice  to  all  parties  in  interest  and  by  ad- 
vertisement as  the  court  may  direct.  Sale  to  be  made  by  a  trustee  to  be 
appointed  who  shall  give  security  in  double  the  amount  of  the  probable 
value  of  the  land.  Proceeds  to  be  distributed  as  the  effects  of  the  cor- 
poration and  also  court  may  decree  conveyances  in  specific  execution  of 
a  contract  in  manner  aforesaid. 

(49)  A   series  of  statutes   have  been  passed  authorizing  corporations 
to  hold  property  purchased  at  judicial  sale.     Each  act  authorizes  corpo- 
rations to  hold  real  estate  theretofore  bought  for  a   further  period  of 
five  years,  and  so  long  as  the  legislature  continues  to  pass  these  acts, 
there  seems  to  be  no  occasion  to  resort  to  the  court  under  the  clause  in 
the  Price  Act.     The  validating  statutes  are  as  follows :    Act  of  June  10, 
1911,  P.  L.  871,  which  applies  only  to  banking  companies  and  excepts  rail- 
road rights  of  way;    Act  of  April  15,  1903,  P.  L,.  200;    Act  of  April  20, 
1897,  P.  L.  28;  Act  of  May  18,  1893,  P.  L.  88;  Act  of  May  26,  1887,  P.  L. 
274;   Act  of  May  22,  18831,  P.  I*  41 ;   Act  of  May  27,  1878,  P.  L.  96.    See 
Act  of  June  15,  1911,  P.  L,.  955. 

(50)  P.  L.  426,  Sec.  i. 


8o  LEGAI,  DISABILITIES.  §  84 

Corporate  Holdings  in  Excess  of  the  Amount  Prescribed  by  Law. 

§  84.  It  is  provided  in  Sec.  5,  that  where  a  corporation  shall 
own  real  estate  beyond  that  which  is  authorized,51  and  no  pro- 
ceeding to  procure  a  forfeiture  shall  have  been  commenced,  it 
may  have  a  sale  confirmed  under  the  act  so  as  to  bar  the  right 
of  the  commonwealth  to  forfeiture.  The  petition  must,  how- 
ever, as  in  the  case  of  a  petition  to  bar  contingent  remainders, 
set  forth  an  explanation  of  the  title  and  the  purpose  to  defeat 
the  right  of  the  commonwealth  to  forfeiture.52  Under  this  pro- 
vision, a  corporation  of  this  character,  able  to  hold  real  estate 

(51)  The  Act  of  May  15,  1913,  P.  L.  214,  provides  "That  all  corpora- 
tions within  the  Commonwealth  of  Pennsylvania,  incorporated  for  pur- 
poses not  for  profit,  under  any  general  or  special  law  of  the  Common- 
wealth of  Pennsylvania,  or  which  may  hereafter  be  incorporated  under 
the  authority  of  the  same,  have,  and  shall  have,  the  right  to  own,  hold, 
use,  and  enjoy  real  estate,  within  this  commonwealth,  of  the  clear  yearly 
rental  value  or  income  of   fifty  thousand   dollars,    any   limitation   con- 
tained in  the  charters  of  such  corporations  to  the  contrary  notwithstand- 
ing.    Section  2.     All  acts  or  parts  of  act  inconsistent  with  this  act  are 
hereby  repealed."    This  act  seems  to  supersede  as  to  real  estate  several 
earlier  acts,  for  instance,  the  Act  of  July  15,   1897,   P.  L.  283,   Sec.  2, 
providing  that  corporations  not  for  profit  should  not  hold  real  estate  in 
excess  of  the  clear  yearly  value  of  $20,000.     By  Act  of  April  22,  1889, 
P.    L.    42,    the    clear    yearly    value    of    the    real    and    personal    estate 
of  literary,  religious,  charitable  or  beneficial  societies,  congregations  or 
corporations  was  fixed  at  $30,000.     See  Act  of  April  26,  1855,  Sees.  4,  8, 
and  12,  P.  L.  328.     Confer  Act  of  Feb.  20,   1854,  P.  Iy.  90,   Sec.  3,  by 
which  the  court  is  directed  in  granting  the  charter  to  limit  the  clear, 
yearly  income  other  than   from  real  estate.     See  Foulke,   Rule  against 
Perpetuities  in  Penna.,  (1909)   Sec.  657.    The  proceedings  for  forfeiture 
are  under  the  Act  of  April  26,  1855,  P.  L.  328,  Sec.  9.     By  the  Act  of 
June  6,    1893,   P.   L.   324,   any   religious,   educational,   literary,   social   or 
charitable  corporation  may  obtain  the  consent  of  the  Court  of  Common 
Pleas  to  an  increase  in  the  amount  of  their  holdings.    See  Kortright's  Est., 
237  Pa.  143  (1912),  s.  c.  21  D.  R.  248. 

(52)  It  seems  that  in  such  a  case  a  corporation  may  sell,  independently 
of  the  act,  but  the  title  of  the  purchaser  will  be  defeasible  on  proceed- 
ings by  the  commonwealth  just  as  the  title  of  the  corporation  was.     In 
Leazure  v,  Hillegas  (1821),  7  S.  &  R.  313,  it  was  held  that  the  Bank  of 
North  America,  which  by  its  charter  was  authorized  to  hold,  purchase 
and  sell  lands,  but  were  restrained  by  its  charter  as  to  amount,  might  sell 
by  a  good  title  land  which  they  had  purchased  in  excess  of  the  amount, 
but  that  the  title  of  the  purchaser  was  defeasible  by  the  commonwealth 
just  as  the  title  of  the  grantor  was. 


§  85  CORPORATIONS.  81 

only  of  a  limited  amount,  may  find  it  desirable  to  proceed  for 
the  sale  of  the  property. 

Religious,  Beneficial  and  Charitable  Corporations. 

§  85.  Where  the  title  to  land  is  vested  in  a  religious,  charit- 
able, or  beneficial  corporation,  it  seems  clear  that  the  corporation 
can  convey,  mortgage  or  deal  with  the  title  as  a  corporation  with- 
out the  aid  of  the  court  as  well  as  any  other  corporation.53  An 
unfortunate  notion  seems  to  have  obtained,  however,  that  such 
a  corporation  cannot  dispose  of  its  title  by  virtue  of  its  corporate 
capacity  but  must  obtain  the  authority  of  the  court  by  proceed- 
ings under  the  Price  Act.54  Traces  of  this  notion  are  to  be  found 
in  the  books55  and  cases  have  arisen  in  practice  where  the  parties 
have,  under  its  influence,  invoked  the  jurisdiction  of  the  court 
to  confirm  a  mortgage  or  sale,  etc.,  by  such  a  corporation,56  al- 
though proceedings  under  the  act  seem  to  be  unnecessary  as  such 
a  corporation  has  a  right  to  sell  unless  restrained  by  statute  or 
charter,58  or  there  is  a  prohibition  of  a  sale  by  the  donor. 

The  Act  of  May  i,  iQO/,59  authorizing  the  division  of  charit- 
able corporations,  provides  in  Sec.  5,  that  the  court  (C.  P.)  may 
authorize  such  conveyances  of  property  as  may  be  necessary  to 
carry  the  division  into  effect. 

(53)  See  §  83,  ante,  as  to  corporations. 

(54)  The  provisions  of  the  act  are,  "that  such  sale,  etc.,  may  be  de- 
creed when  the  title  is  held  for  religious,  beneficial  or  charitable  societies 
or  associations  incorporated  or  unincorporated  or  for  or  by  any  other 
corporation." 

(55)  See   remarks   of   Mitchell,   J.,  in   Nauman  v.   Wiedman,   182   Pa. 
263  at  266  (1897),  s,  c.  40  W.  N.  C.  509,  37  Atl.  Rep.  863,  14  Lane.  L. 
R-  3<>5;  Seif  v.  Krebs,  239  Pa.  423  (1913). 

(56)  In  Corr's  Est,  29  Pa.  C.  C.  276  (1903),  s.  c.  12  D.  R.  788,  there 
was  a  devise  to  the  school  of  a  certain  church,  which  the  court  said  was 
in  ease  of  the  church  and  vested  the  title  in  the  church,  and  hence  the 
petition  was  properly  presented  in  the  corporate  name  of  the  church,  and 
a  petition  apparently  for  confirmation  of  a  private  sale,  was  confirmed. 
See  Church's  Pet.,  I  Lack.  L.  N.  89  (1887),  C.  P.,  Church's  Pet.,  166  Pa. 
42   (1895);    Dictum,  Cushman  v.  Church,   188  Pa.  438   (1898),  Clayton, 
P.  J.,  in  the  court  below,  at  p.  445,  s.  c.  6  D.  R.  607  (1907). 

(58)  Phillips  v.  Church,  225  Pa.  62  (1909).    Sulzberger,  J.,  in  the  court 
below,  said  that  the  church  had  a  common  law  right  to  sell  unless  re- 
strained by  statute  or  charter. 

(59)  P.  L.  140. 


82  LEGAL  DISABILITIES.  §  86 

Religious,  Beneficial  and  Charitable  Associations. 

§  86.  The  act  provides  for  the  sale,  etc.,  where  the  property 
is  held  by  or  for  religious,  beneficial  and  charitable  associations. 
Where  the  property  is  held  in  trust  for  such  an  association,  the 
jurisdiction  of  the  court  is  conferred  by  the  clauses  relating 
to  trusts.  The  only  difficulty  which  arises  is  where,  if  such  a 
case  could  arise,  the  title  is  in  the  association.  It  seems,  how- 
ever, that  in  such  case  the  legal  title  cannot  vest  in  an  associa- 
tion.60 If  any  case  should  arise  where  a  conveyance  has  been 
made  to  such  an  association  or  an  attempt  been  made  to  vest 
the  title  in  them,  then  there  would  be  a  proper  case  to  invoke  the 
jurisdiction  of  the  court.  The  petition  then  should  be  by  the 
chief  officers  of  the  association  duly  authorized  at  a  proper  meet- 
ing of  the  association  in  accordance  with  the  by-laws,  and  then 
if  the  court  finds  the  sale  to  be  to  the  interest  and  advantage  of 
the  parties,  the  officers  or  such  persons  as  may  be  directed  may 
make  the  sale  and  vest  a  good  title  in  the  purchaser. 

(60)  See  Foulke,  Rule  Against  Perpetuities,  etc.,  in  Penna.  (1909),  sec. 
723- 


LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.  83 


CHAPTER  5. 

Limitations  of  and  Liens  Upon  the  Title. 

Estates  tail 

Preliminary    §  90 

Not  necessary  to  resort  to  act  §  91 

Proceedings  under  act  may  not  bar  vested  remainders  §  92 

As  to  purchase  money  §  93 

Requisites  of  petition  §  94 

Mortgage  of  an  estate  tail  §  95 

Lease  of  an  estate  tail  §  96 

Contingent  remainders 

Preliminary    §  97 

Provisions  of  the  act  §  98 

Distinction  between  equitable  and  legal  remainders  §  99 

Contingent  remainders  and  ultimate  vested  remainders   §  100 

Requisites  of  petition  §  101 

Notice    §  102 

Remainders  to  a  class 

Preliminary  definition  of  remainders  to  a  class   §  103 

Formerly  supposed  that  act  provided  for  remainders  to  a  class  §  104 

Price  Act  did  not  provide  for  remainders  to  a  class  §  105 

Acts  of  1897  providing  for  remainders  to  a  class  §  106 

Equitable  remainders  to  a  class   §  107 

Disharge  of  purchase  money  from  remainders 

Preliminary    §  108 

Legal  remainders  §  109 

Equitable  remainders   §  no 

Mortgage  of  property  which  is  subject  to  contingent  remainders  §  in 

Executory  devise  §112 

Lien  of  debts  not  of  record 

Preliminary §  113 

Provisions  of  the  act   §  114 

Act  of  1832  to  be  distinguished   §115 

Grenawalt's  Appeal §  116 

Rower's  Appeal   §117 

Pierce's  Estate   §  118 

Orwig's  Estate  §  1 19 

Yard's  Estate    §  120 

Spencer  v.  Jennings   §  121 

Burkhardt's   Estate   §  122 

West  v.  Cochran  §  123 

Distinction  between  Price  Act  and  earlier  acts  §124 

Private  sale  discharging  lien  of  debts  §  125 


84            LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.  §§  90, 91 

No  jurisdiction  under  the  act  where  the  lien  of  debts  has 

expired §  126 

Distribution  of  the  proceeds  of  the  sale  §  127 

Act  applies  to  executors  selling  under  a  power  §  128 

Modified  fees    §  129 

Estates  Tail. 


Preliminary. 

§  90.  The  act  provides  that  such  sale,  etc.,  may  be  made  in 
the  case  of  an  estate  tail.  All  estates  tail  are  now  turned  into 
estates  in  fee  under  the  provisions  of  the  Act  of  April  27,  I855,1 
and  it  is  therefore  unnecessary  to  resort  to  this  provision  except 
in  the  cases  of  old  estates  tail,  some  of  which  are  perhaps  still  in 
existence.  It  appears  from  the  remarks  of  Mr.  Price,2  that  the  act 
was  intended  to  furnish  a  method  of  proceeding  similar  to  a 
common  recovery.3 

Not  Necessary  to  Resort  to  Act  to  Bar  an  Entail. 

§  91.  The  jurisdiction  under  the  Price  Act  is  rarely  used  be- 
cause it  is  so  much  easier  to  bar  the  entail  by  a  deed  executed 

(1)  P.  L.  368,  sec.  i.     For  a  more  detailed  discussion  of  this  act  and 
of  the  history  of  estates  tail,  see  Foulke,  Rule  Against  Perpetuities,  etc., 
in  Penna.,    (1909)    Sees.  23,  24.     No  reference  is  made  in  that  discus- 
sion to  the  provisions  of  the  Price  Act  for  unfettering  entails.    The  Act 
of  1855  does  not  apply  to  estates  tail  created  by  the  will  of  a  testator 
dying  before  the  passage  of  the  act,  but  does  apply  to  an  estate  created 
by  will  dated  before  the  act,  where  the  testator  has  died  after  the  act; 
Reinhart  v.  Lantz,  37  Pa.  488   (1861).     For  other  cases  of  estates  tail 
created  before  the  act,  see  Price  v.  Taylor,  28  Pa.  95    (1857)  ;    Morris 
v.  Fisher,  8  D.  R.   161    (1899);    Kinsel  v.  Ramey,  87   Pa.  248   (1878); 
Titzell  v.  Cochran,  7  Sad.  Cases,  15   (1887).     An  estate  tail  descends  in 
Pennsylvania  as  at  common  law;    Guthrie's  App.,  37  Pa.  9   (1861),  ap- 
parently overruling  some  earlier  cases  to  the  contrary.     A  judicial  sale 
of  an  estate  tail  or  a  decree  in  partition  will  operate  as  a  common  re- 
covery under  the  Act  of  April  15,  1859,  P.  L.  670,  Sec.   i.     See  Curtis 
v.  Longstreth,  44  Pa.  297  (1863). 

(2)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  PP-  i°»  59- 

(3)  Act  of  Jan.  27,   1749-50,   i   Sm.  L,.  203,  provides   for  a  common 
recovery  to  bar  entails.    By  Act  of  April  10,  1851,  P.  L.  505,  Sec.  5,  cer- 
tain defective  deeds  are  confirmed,  and  the  Act  of  June  20,  1883,  P.  L,. 
130,  Sec.  i,  Provides  that  any  person  claiming  under  a  tenant  in  tail  by 
conveyance  or  judicial  sale,  may  bar  the  entailment  in  like  manner  as 
the  tenant  in  tail. 


§§92, 93  ESTATES  TAIL.  85 

under  the  provisions  of  the  Act  of  January  16,  1799,*  which  ob- 
viates the  necessity  of  proceedings  in  court  and  the  giving  of 
security.  Such  a  deed  clearly  bars  all  contingent  and  vested  re- 
mainders limited  on  the  estate  tail,  whereas  it  is  not  clear  whether 
proceedings  under  the  act  would  have  the  same  effect  where  the 
remainders  are  vested.5 

Proceedings  "Under  Act  May  Not  Bar  Vested  Remainders. 

§  92.  The  remainders  after  an  estate  tail  may  be  vested  or 
contingent.  It  is  clear  that  the  proceedings  under  the  act  will 
destroy  contingent  remainders  since  they  are  expressly  provided 
for  without  reference  to  the  nature  of  the  estate  upon  which  they 
are  limited.6  There  is  some  doubt  whether  the  proceedings  under 
the  act  destroy  vested  remainders  limited  after  an  estate  tail. 
They  are  not  expressly  provided  for  and  the  act  only  speaks  of 
barring  destructible  contingent  remainders.7 

Mr.  Price  seems  to  be  of  the  opinion  that  the  vested  remainders 
would  not  be  destroyed.8  The  question  is  not  likely  to  arise,  as 
the  estate  tail  may  be  barred  by  the  deed  executed  under  the 
statute,9  which  clearly  destroys  the  vested  remainder.  Since, 
however,  a  vested  remainder  may  thus  be  barred  by  proceedings 
independently  of  the  act,  there  seems  to  be  no  constitutional  ob- 
jection to  making  the  statute  provide  for  the  destruction  of  vested 
remainders  after  an  estate  tail. 

.   As  to  Purchase  Money. 

§  93.  No  case  has  been  found  deciding  whether  the  purchase 
money  substituted  for  the  estate  tail  is  also  turned  into  an  abso- 
lute estate  and  to  be  entirely  paid  over  to  the  former  tenant  in 
tail  as  if  he  were  owner  in  fee.  Such  would  be  the  result  of  the 

(4)  3  Smith's  Laws,  338,   Sec.   i.     For  instance  of  such   a  deed,  see 
Eichelberger  v.  Barnitz,  9  Watts  447   (1840)  ;    Cochran  v.  Cochran,  127 
Pa.  486  (1889)  ;    Boyd  v.  Wingate,  13  W.  N.  C.  56,  s.  c.  14  L.  Bar.  205 
(1883);    Linn  v.  Alexander,  59  Pa.  43  (1868). 

(5)  Implied  entailment  barred  after  twenty-one  years'  possession  by 
deed  under  Act  of  May  21,  1874,  P.  L.  221,  Sec.  i. 

(6)  See  §  97,  post. 

(7)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  10.    Query: 
What  is  the  distinction  between  a  destructible  and  an  indestructible  con- 
tingent remainder? 

(8)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  98. 

(9)  See  §  91,  ante. 


86         LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.  §§94, 95, 96 

barring  of  an  entail  under  the  statute.  It  is  provided  in  Section 
5  that  such  sale  shall  have  the  effect  of  any  other  proceeding  or 
conveyance  now  authorized  by  law,  and  strictly  conducted  to  a 
final  conclusion  to  bar  any  estate  tail,  and  in  such  case  shall  vest 
in  the  tenant  in  tail  whether  minor,  femme  covert  or  otherwise, 
who  after  such  proceeding  might  have  become  entitled  to  the 
absolute  fee  simple,  the  absolute  right  to  the  purchase  money, 
provided  the  petitioner  shall  set  forth  the  title  and  the  purpose 
of  the  sale. 

Sec.  6  provides  that  the  purchase  money  or  mortgage,  ground 
or  other  rent  reserved  shall  in  all  respects  be  substituted  for  the 
real  estate  and  applied  for  the  use  and  benefit  of  the  same  per- 
sons having  a  future,  etc.,  interest,  except  only  such  remainders 
after  an  entailment  or  contingent  remainder  as  shall  have  been 
barred  or  defeated,  as  aforesaid. 

Mr.  Price10  says  that  the  purchase  money  will  be  discharged 
of  the  limitations  in  contingency  when  that  purpose  is  set  out 
in  the  petition  and  passed  on  by  the  court. 

Requisites  of  Petition. 

§  94.  The  petition  should  be  made  by  the  tenant  in  tail,  and 
the  purpose  of  barring  the  entail  should  be  set  out  in  the  peti- 
tion,11 and  be  provided  for  in  the  decree  of  the  court.12 

Mortgage  of  an  Estate  Tail. 

§  95.  Where  there  is  a  proceeding  to  mortgage  an  estate  tail, 
it  is  apprehended  that  the  proceeding  will  result  in  giving  the 
mortgagee  an  encumbrance  upon  a  title  which,  for  the  purpose 
of  the  mortgage,  would  be  considered  a  fee  simple,  and  upon  a 
sale  under  the  mortgage,  the  purchaser  would  obtain  a  fee 
simple.  What  effect  such  a  decree  would  have  upon  the  estate 
tail  remaining  in  the  tenant  in  tail,  and  whether  if  a  mortgage 
were  paid  off  the  title  would  be  affected,  are  questions  not  pro- 
vided for  in  the  act,  and  hardly  likely  to  arise. 

Lease  of  an  Estate  Tail. 

§  96.  Where  there  is  a  lease  of  an  estate  tail,  it  is  probable 
that  the  tenant  in  tail  would  have  no  occasion  to  resort  to  the 

(10)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  99. 
(n)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  100. 
(12)  Price,  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  10. 


§§  97»98  CONTINGENT  REMAINDERS.  87 

court,  as  he  could  make  an  ordinary  lease  by  virtue  of  his  author- 
ity as  tenant  in  tail. 

Preliminary  Discussion   of   Contingent   Remainders. 

§  97.  Where  property  is  subject  to  contingent  remainders,  it 
is  practically  inalienable  because  it  is  not  possible  to  find  a  pur- 
chaser who  will  pay  the  market  price  if  he  takes  it  subject  to 
the  remainders,  and  it  is  very  difficult  for  the  party  who  holds 
subject  to  the  contingent  remainders  and  the  purchaser  to  agree 
on  a  sum  which  will  represent  the  interest  of  the  life  tenant,  as 
the  contingency  will  happen  to  the  advantage  of  one  or  the  other, 
and  neither  wants  to  run  the  risk  of  a  detriment  to  himself  or 
permit  the  other  to  reap  the  advantage  of  the  contingency  turn- 
ing out  in  his  favor.  The  learned  reader  is  reminded  at  this 
point  that  contingent  remainders  in  Pennsylvania  are  destroyed 
by  the  surrender  merger  or  natural  expiration  before  the  hap- 
pening of  the  event  of  the  preceding  particular  estate,13  upon 
which  they  depend,  and  also  upon  a  common  recovery  suffered  by 
the  tenant  of  the  preceding  particular  estate,  that  it  is  doubtful 
whether  they  are  destroyed  by  forfeiture  of  the  preceding  estate 
for  treason  or  for  violation  of  a  restriction  imposed  by  a  pre- 
vious owner  of  the  title,  and  that  they  are  not  destroyed  by  a 
conveyance  of  the  preceding  estate  by  a  lease  and  release,  by  a 
Pennsylvania  deed  in  the  ordinary  form  under  the  Act  of  1715, 
or  by  a  conveyance  by  the  cestui  que  trust.14 

Provisions  of  the  Act  as  to  Contingent  Remainders. 

§  98.  The  act  provides  that  such  sale,  etc.,  may  be  made 
where  property  is  subject  to  contingent  remainders.  This  proviso 
was  inserted  in  the  act  in  order  to  permit  the  sale,  etc.,  where 
property  is  subject  to  contingent  remainders,  and  furnishes  a 
means  of  bringing  such  property  into  the  market  and  making  it  as 
salable  as  if  there  were  no  such  remainders  limited  thereon.  The 
provision  is  clearly  designed  to  provide  for  the  destruction  of  the 
contingent  remainders  by  an  ordinary  conveyance  made  under 
order  of  the  court,  as  prescribed  in  the  act. 

(13)  Which  in   Pennsylvania  can,   except  only  in   rare   instances,  be 
nothing  but  a  life  estate. 

(14)  See   Foulke,  Rule  Against  Perpetuities,  etc.,  in  Penna.,    (1909) 
Sec.  62. 


88  LIMITATIONS  of  AND  LIENS  UPON  THE  TITLE.        §  99 

The  contingent  remainders  must  really  exist,  and  the  aver- 
ment in  the  petition  if  their  existence  will  not  bring  the  case 
within  the  clause  of  the  act  unless  the  facts  correspond.  Con- 
sequently, in  Wagner's  Appeal,15  it  was  held,  where  the  sale  had 
taken  place,  and  it  turned  out  that  there  were  no  contingent  re- 
mainders, that  the  act  did  not  apply  and  there  was  a  conversion 
of  the  interest  of  a  minor.  A  few  instances  of  cases  of  sales  to 
bar  contingent  remainders  are  collected  in  the  note.16 

In  Murray's  Estate,17  there  was  a  gift  of  the  residue  in  three 
shares,  each  share  for  a  child  for  life  with  contingent  remainders 
over.  A  portion  of  the  real  estate  was  sold  after  the  death  of 
one  of  the  life  tenants,  and  it  appears  that  at  that  time  the  in- 
terests were  undivided.  If  this  is  so,  the  petition  was  correct 
in  stating  the  purpose  of  barring  contingent  remainders  and  ex- 
ecutory devises  because  there  were  probably  contingent  remain- 
ders limited  after  the  estates  of  the  other  life  tenants,  but  if  the 
sale  was  of  a  part  which  had  been  set  aside  and  divided  into  a 
third,  then  there  were  no  contingent  remainders  to  bar,  because  the 
life  tenant  being  dead,  the  remainders  were  all  vested  in  his  chil- 
dren, and  the  sale  was  therefore  a  sale  of  the  interest  of  a  minor 
and  not  a  sale  to  bar  contingent  remainders. 

Distinction  Between  Legal  and  Equitable  Remainders. 

§  99.  The  contingent  remainders  may  be  legal  or  equitable. 
If  equitable,  the  trustee  having  the  custody  of  the  legal  title 
may  dispose  of  the  same  under  the  clauses  of  the  act  relating  to 
trusts,18  and  in  such  case  the  circumstance  that  the  equitable  re- 
mainders are  contingent  seems  to  be  immaterial.  In  a  number 
of  cases,  however,  the  courts  have  authorized  a  sale  by  a  trustee 
and  sustained  the  jurisdiction  exercised  chiefly  on  the  ground  that 
the  equitable  remainders  were  contingent.19  If  the  court  may 

(15)  89  Pa.  303  (1879). 

(16)  Keim's  App.,  125  Pa.  480  (1889).    Life  tenant  petitioned  for  the 
order  of  sale  and  was  appointed  trustee  to  make  it;    see  High's  Est,  136 
Pa.  222   (1890);    Grindrod's  Est.,    140   Pa.   161    (1891);    Brooke's   Est., 
214  Pa.  46  (1906),  affirming  15  D.  R.  137  (1905),  raises  a  question  of  construc- 
tion whether  there  were  vested  remaindermen  who  could  object  to  the  sale. 

(17)  234  Pa.  520  (1912). 

(18)  See  §  136,  post. 

(19)  Moorehead  v.  Wolff,   123  Pa.  365    (1889),  23  W.  N.   C.   167,  36 
Pitts.  L.  J.  352,  46  L.  I.  261.    Confer  Rhoades's  Est.,  4  W.  N.  C  527  (1877). 


§§  ioo,  ioi  CONTINGENT  AND  ULTIMATE  VESTED  REMAINDERS.  89 

authorize  the  sale  by  the  trustee  where  the  equitable  remainders 
are  vested,20  then  it  seems  that  in  the  case  of  a  trust,  it  is  not 
necessary  to  proceed  on  the  ground  that  the  remainders  are  con- 
tingent. In  this  case  the  jurisdiction  to  be  exercised  on  the 
ground  that  the  property  is  subject  to  a  trust. 

Contingent  Remainders  and  Ultimate  Vested  Remainders. 

§  100.  The  question  arises  whether  in  the  case  where  there 
are  contingent  remainders  followed  by  ultimate  vested  remain- 
ders the  proceedings  under  the  act  will  bar  the  vested  remainders. 
If  a  vested  interest  cannot  be  divested  without  the  consent  of 
the  owner,  there  seems  to  be  room  to  argue  that  there  is  no  dis- 
tinction between  a  vested  interest  and  a  vested  interest  subject 
to  be  divested.  The  question  has  not  been  decided  by  the  Su- 
preme Court,  and  in  one  case  in  the  lower  court  it  was  held  that 
the  act  authorized  a  sale. 

Such  a  remainderman  has  really  no  greater  right  than  a  con- 
tingent remainderman  because  his  remainder  is  in  fact  contingent, 
although  not  so  regarded  owing  to  the  ancient  principles  of  the 
feudal  law.22 

Requisites  of  Petition. 

§  101.  The  petition  asking  for  the  exercise  of  this  jurisdic- 
tion should  set  out  the  title,  show  the  contingent  remainders, 
and  specify  that  it  is  the  purpose  of  the  proceeding  to  pass  a 
title  clear  and  discharged  from  the  limitations.23  If  the  pe- 
tition fails  to  properly  set  out  the  object  of  the  proceedings,  there 
is  some  doubt  whether  the  purchaser,  who  has  in  good  faith  ac- 

(20)  See  §  136,  post. 

(21)  In  Gamble's  Est,  9  D.  R.  691   (1900),  there  were  ultimate  vested 
remainders  which  were  said  to  be  defeasible  as  liable  to  be  divested  by 
the  falling  in  of  the  contingent  remainders,  and  the  sale  was  nevertheless 
ordered  notwithstanding  the  objection  of  the  ultimate  vested  remainder- 
men.   The  petition  was  by  the  life  tenant. 

(22)  See  Foulke,  Rule  Against  Perpetuities,  etc.,  in  Penna.,  (1909),  Sec. 
39,  et.  seq. 

(23)  McCaffrey  v.  Gibney,  223  Pa.  368   (1909).     No  executory  devise 
here  although  the  court  seemed  to  think  so.   See  Diet.  Strong,  J.,  in  Smith 
v.  Townsend,  32  Pa.  434  at  442  (1859)  ;   Westhafer  v.  Koons,  144  Pa.  26 
(1891).    As  to  what  is  a  proper  averment,  see  remarks  of  Mestrezat,  J., 
in  Swift  v.  Harbison- Walker  R.  C.,  228  Pa.  584  (1910)  at  587. 

7 


90          LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.  §§102, 103 

cepted  the  title  under  the  decree  of  the  sale  and  paid  the  pur- 
chase money,  will  be  protected.2* 

Notice. 

§  102.  Where  the  sale  is  made  for  the  purpose  of  divesting 
contingent  remainders,  a  distinction  should  be  made  between  the 
two  kinds  of  contingent  remainders  so  far  as  the  question  of 
notice  is  concerned,  (i)  those  where  the  remainder  is  limited  to 
an  ascertained  person  subject  to  a  condition  precedent,  (2)  those 
where  the  remainder  is  limited  to  an  unascertained  person. 
Where  the  remainderman  is  ascertainable  he  must  be  notified, 
otherwise  his  title  will  not  be  divested  by  the  proceedings.  It 
seems  that  in  such  a  case  he  cannot  attack  the  decree,  but  is  rele- 
gated to  an  action  of  ejectment  against  the  land.25  Where  the 
remainderman  cannot  be  ascertained,  a  trustee  should  be  ap- 
pointed to  represent  him.26 

Preliminary  Definition  of  Remainders  to  a  Class. 

§  103.  Where  there  is  a  remainder  to  a  class  of  persons,  as 
children,  etc.,  which  class  is  likely  to  increase,  and  there  is  one 
member  of  the  class  in  existence,  there  is  in  that  member  a 
vested  interest  the  value  of  which  is  uncertain  until  all  the  mem- 
bers of  the  class  are  ascertained.  The  common,  although  some- 
what inaccurate  phrase  applied  to  such  a  state  of  affairs  is,  that 
there  is  a  vested  remainder  liable  to  open  and  let  in  after-born 
children.  These  remainders  lie  midway  between  vested  and  con- 
tingent remainders,  but  within  the  evil  of  contingent  remainders 
because  the  property  is  inalienable  so  long  as  there  is  any  possi- 
bility of  an  increase  in  the  membership  of  the  class,  and  the  con- 
tingent remainder  to  children,  will  exist  in  the  eye  of  the  law  even 
though  the  mother  is  past  the  age  of  child-bearing.27 

(24)  In  Westhafer  v.  Koons,  144  Pa.  26  (1891),  it  was  held  that  the 
purchaser  at  the  sale  could  refuse  to  take  the  title.     See  §  220,  post,  on 
Orphans'  Court  sales. 

(25)  Grindrod's  Est.,  140  Pa.  161    (1891). 

(26)  See  the  remarks  of  Swartz,  P.  J.,  in  the  court  below  in  Grind- 
rod's  Est.,  140  Pa.  161  at  164   (1891).     Trustee  of  contingent  equitable 
remainders  in  possee  to  a  class  appointed  in  Moorehead  v.  Wolf,  123  Pa. 
365  (1889),  2$  W.  N.  C.  167,  36  Pitts.  L.  J.  352,  46  L.  I.  261,  and  in  Mc- 
Caffrey v.  Gibney,  223  Pa.  368  (1909). 

(27)  Westhafer  v.  Koons,  144  Pa.  26  (1891). 


§§104, 105>  IQ6        REMAINDERS  TO  A  CLASS.  91 

Formerly  Supposed  that  the  Act  Provided  for  Remainders  to  a  Class. 

§  104.  It  was  for  a  long  time  apparently  supposed  that  the 
provision  in  the  act  nevertheless  covered  the  case,  and  in  several 
instances  sales  to  bar  such  remainders  were  authorized.28  Mr. 
Price29  was  of  the  opinion  that  the  case  of  a  remainder  to  a  class 
was  provided  for  by  the  act  as  a  devise  or  grant  for  special  or 
limited  purposes. 

Price  Act  Did  Not  Provide  for  Remainders  to  a  Class. 

§  105.  When  the  question  came  before  the  Supreme  Court, 
in  the  case  of  Keller  v.  Lees,30  the  court  said  that  the  remainder 
became  vested  as  soon  as  a  child  was  born,  and  therefore  the 
case  was  not  within  the  act.  If,  however,  the  interest  of  one 
child  was  vested,  that  was  enough,  under  the  law  as  it  then  stood, 
to  prevent  the  sale.  The  other  remainders  could  not  be  divested 
and  the  one  remain,  because  it  could  not  be  determined  until  the 
termination  of  the  life  estate,  what  the  share  of  each  in  the  land 
would  be.  It  is  suggested  that  this  was  the  proper  ground  for 
the  decision.31 

Acts  of  1897  Providing  for  Remainders  to  a  Class. 

§  106.  In  consequence  of  this  decision,  the  Act  of  June  14, 
i897,32  amending  the  Price  Act,  and  the  Act  of  June  15,  i897,33 

(28)  See  Westhafer  v.  Koons,  144  Pa.  26  (1891) ;   Fox's  Est.,  18  Pa. 
C.  C.  114  (1896),  s.  c.  2  Lacka.  Law  Notes,  292;  sub  nom.  Greenwalt's  Est, 
5  D.  R.  314,  2  Dauphin  Co.  358;    in  this  case  the  court,  Simonton,  P.  J., 
indulged  in  an  elaborate  discussion  of  the  nature  of  a  remainder  to  a 
class,  and  concluded  that  it  was  in  fact  contingent.     The  remaindermen 
were  all  minors  which  might  alone  have  justified  the  sale.     "We  also 
think  that     .   .   .     the  court  would  have  jurisdiction  to  order  the  sale 
prayed  for  under  the  clause  which  provides  that  such  sale  may  be  or- 
dered in  all  cases  where  estates  have  been  or  shall  be  devised  or  granted 
for  special  or  limited  purposes."     Camber's  Est,  i  W.  N.  C.  85  ( 1874)  ; 
the  petition  was  by  the  life  tenant,  and  the  question  was  not  discussed, 
the  decision  being  placed  on  the  ground  of  necessity  to  sell  to  pay  for 
municipal  improvements,  as  to  which  see  §  30  ante.    Moorehead  v.  Wolf, 
123  Pa.  365  (1889),  s.  c.  23  W.  N.  C.  167,  36  Pitts.  L.  J.  352,  46  L.  I.  261. 

(29)  Price  on  The  Act  for  the  Sale  of  Real  Estate,   (1874)   p.  108. 

(30)  176  Pa.  402  (1896). 

(31)  See  Crawford  v.  Forest  Oil  Co.,  208  Pa.  5   (1904). 

(32)  P.  L.  144,  Sec.  i,  which  provides  for  the  sale,  etc.,  whenever  prop- 
erty is  subject  to  vested  remainders  which  are  liable  to  open  and  let  in 
after-born  children. 

(33)  P.  L.  159,  which  authorizes  the  sale,  etc.,  of  lands  which  have 


92  LIMITATIONS  of  AND  LIENS  UPON  THE  TITLE.       §  106 

were  passed  authorizing  a  sale,  etc.,  in  the  case  where  there  is  a 
remainder  to  a  class.  The  Act  of  June  I4th  expressly  amends 
the  Price  Act  and  limits  the  jurisdiction  to  the  case  of  remainders 
to  children.  The  Act  of  June  i5th  is  an  independent  act  follow- 
ing the  phrases  of  the  Price  Act  and  confers  the  jurisdiction  only 
on  the  Orphans'  Court.  It  is  therefore  possible  to  proceed  in 
the  Common  Pleas  in  a  proper  case  where  there  is  a  limitation 
to  children  but  in  all  other  cases  of  a  remainder  to  a  class  the 
proceedings  must  be  in  the  Orphans'  Court,  otherwise  the  re- 
mainder cannot  be  barred.  Each  act  confirms  all  sales  there- 
tofore made  in  the  case  specified.  The  Act  of  June  i5th  very 
curiously  enough  ratifies  sales  therefore  made  in  both  the  Com- 
mon Pleas  and  Orphans'  Court.  It  is  to  be  observed,  however, 
that  if  in  any  case  no  member  of  the  class  is  born,  the  remainder 
is  entirely  contingent,  and  a  sale  will  be  proper  under  the  Act 
of  1853  as  it  stood  before  the  amendment.3* 

been  or  shall  be  devised  or  granted  for  life  or  the  life  of  another  and 
with  remainder  limited  to  a  class  of  persons  some  or  all  of  whom  may 
not  be  in  being  at  the  time  of  the  decree.  For  text  of  the  act  see  ap- 
pendix A. 

(34)  In  the  following  cases  a  sale  was  authorized  to  bar  remainders 
to  a  class:  Smith's  Est.,  207  Pa.  604  (1904),  where  there  was  a  petition 
by  life  tenants  of  io-i2th  of  the  property  and  some  of  the  remaindermen 
in  esse,  wh)>h  was  resisted  by  tenant  for  life  of  two-twelfths  and  the 
other  remaindermen.  Sale  was  decreed.  The  contingent  remainders 
were  to  children  or  grandchildren.  In  Loucks's  Est.,  203  Pa.  278  (1902). 
there  was  a  petition  by  the  life  tenant,  remainder  to  children,  sale  de- 
creed. In  Hinkson  v.  Lees,  181  Pa.  225  (1897),  the  testator  by  will  dated 
1841  devised  to  A.  for  life,  and  after  his  death  to  his  lawful  children  and 
their  heirs  and  assigns  subject  to  a  certain  annuity,  but  if  A.  should  die 
without  leaving  lawful  issue  to  survive  or  such  issue  who  shall  not  attain 
the  age  of  twenty-one  years,  then  to  the  lawful  children  of  B.  subject 
to  his  life,  and  if  they  survive  him  and  live  to  the  age  of  twenty-one 
years,  or  their  lawful  issue,  to  hold  the  same  to  them,  their  heirs  and 
assigns,  but  if  B.  should  die  without  leaving  lawful  issue,  as  aforesaid, 
then  to  the  children  of  C.  in  equal  shares,  their  heirs  and  assigns. 
The  land  embraced  in  the  devise  was  sold  under  the  Price  Act  by  X.  as 
trustee  to  bar  any  contingent  remainders  or  executory  devises,  and  the  con- 
troversy arose  over  the  distribution  of  the  fund.  It  was  held  that  the  chil- 
dren of  A.,  when  born,  took  a  vested  remainder  liable  to  be  divested,  and 
the  children  of  B.  took  nothing  until  the  happening  of  the  contingency,  and 
when  that  failed,  their  interest  entirely  dropped  out. 


§§  107,  IQ8       DISCHARGE  OF  PURCHASE  MONEY.  93 

Equitable  Remainders  to  a  Class. 

§  107.  Where  there  are  equitable  remainders  to  a  class,  the' 
doubt  as  to  the  jurisdiction  under  the  act  does  not  exist  because 
a  trustee  may  be  authorized  to  sell  under  the  clauses  of  the  act 
relating  to  trusts  even  if  there  are  vested  equitable  remainders.35 

As  to  the  Discharge  of  the  Purchase  Money  from  the  Contingent  Re- 
mainders. 

§  108.  It  is  doubtful  whether  the  proceedings  under  the  act 
discharge  the  purchase  money  from  the  grasp  of  the  contingent 
remainders.36 

(35)  See  §  136  post.    See  Owens'  Pet.,  3  D.  R.  328  (1894),  which  was 
a  case  of  a  sale  by  a  trustee  where  there  were  vested  equitable  remainders. 

(36)  The  act  provides,   Section   5,   "...  and   every   such   sale   and 
every  conveyance  in  fee  simple  upon  ground  rent,  shall  have  all  the  ef- 
fect of  any  other  proceeding  or  conveyance  now  authorized  by  law  and 
strictly  conducted  to  a  final  conclusion,  to  bar  any  estate  tail,  and  to  de- 
feat contingent  remainders,  and  in  such  case  shall  vest  in  the  tenant  in 
tail,  or  particular  tenant,  whether  minor,  feme  covert  or  otherwise,  who 
after  such  proceeding  or  conveyance  might  have  become  entitled  to  the 
absolute  fee  simple  title,  the  absolute  right  to  the  purchase  money,  and 
the  ground  rents  reserved,  and   such  sales  and  conveyances  on  ground 
rent  shall  also  bar  any  right  of  the  commonwealth  to  forfeit  real  estate 
that  may  have  been  held  by  or  for  any  corporation  beyond  what  has  been 
authorized,  if  no  proceeding  to  procure  a  forteiture  shall  have  been  com- 
menced before  petition  filed  for  a  sale  or  letting  on  ground  rent;    Pro- 
vided, that  the  petition  shall  set  forth  an  explanation  of  the  title,  and  of 
the  purpose  to  bar  the  entail  defeat  the  contingent  remainder  or  the  right 
of  the  commonwealth  to  have  inquisition    for  any  estate   defeasible  as 
aforesaid;  And  provided,  That  the  purchase  money  or  rent  reserved  shall 
be  a  lien  on  the  premises  sold  or  let,  until  fully  paid  according  to  the 
decree  of  the  court." 

Section  6.  That  the  purchase  money,  or  mortgage  money,  ground  or 
other  rent  reserved,  shall  in  all  respects  be  substituted  for  the  real  es- 
tate sold,  mortgaged,  or  let,  as  regards  the  enjoyment  and  ownership 
thereof,  after  the  payment  of  liens,  and  shall  be  held  for  or  applied  to 
the  use  and  benefit  of  the  same  persons,  and  for  the  same  estate  and  in- 
terest, present  or  future,  vested,  contingent,  or  executory,  as  the  real 
estate  sold,  mortgaged,  or  let,  had  been  held,  except  only  such  remainders, 
after  an  entailment  or  contingent  remainders,  as  shall  have  been  barred 
or  defeated  as  aforesaid,  and  those  entitled  to  a  present  interest  in  such 
real  estate,  shall  receive  the  interest  of  the  proceeds  or  rents  thereof, 
unless  expressly  directed  to  accumulate :  Provided,  That  no  principle 
monies  raised  by  sale  or  mortgage,  as  aforesaid,  shall  be  expended  for 
any  other  purpose  than  for  the  payment  of  liens  upon  or  the  improve- 


,94  LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.       §  109 

It  is  perfectly  clear  and  well-settled  that  the  sale  under  the 
act  when  properly  conducted  discharges  the  title  in  the  hands  of 
the  purchaser  from  the  contingent  remainders.  It  remains  to 
consider  whether  the  purchase  money  which  is  substituted  for 
the  land  is,  in  like  manner,  freed  from  the  grasp  of  the  contin- 
gent remainders.  The  question  is  important  because  if  the  con- 
tingent remainders  are  destroyed  as  to  the  purchase  money,  the 
life  tenant  of  the  preceding  estate,  where  there  are  no  ulterior 
vested  interests,  will  have  his  estate  enlarged  into  a  fee  by  the 
operation  of  the  sale,  whereas  if  the  contingent  remainders  are 
not  destroyed,  he  will  be  in  the  same  position  as  he  was  in  before 
the  sale,  so  far  as  the  quantum  of  his  interest  is  concerned.  The 
question  does  not  appear  to  have  been  decided  by  the  Supreme 
Court,  and  in  view  of  the  large  interests  which  no  doubt  have 
frequently  been  at  stake,  it  is  somewhat  surprising  that  no  con- 
troversy has  arisen.  We  must  distinguish  in  the  discussion  be- 
tween legal  remainders  and  equitable  remainders. 

Legal  Remainders. 

§  109.  We  have  seen  that  in  the  case  of  an  executory  devise, 
the  title  of  the  executory  devisee  is  not  destroyed  by  the  sale 
under  the  act,  probably  because  before  the  act  was  passed  his 
interest  was  indestructible  by  any  act  of  the  tenant  in  fee  without 
his  consent,  and  the  act  makes  no  provision  for  destroying  it. 
In  the  case  of  a  contingent  remainder,  the  law,  before  the  act 
was  passed,  was  different.  A  common  recovery  completely  de- 
stroyed the  contingent  remainders  so  that  the  right  of  the  con- 
tingent remainderman  was  lost  forever,  and  the  tenant  of  the 
preceding  estate  had  his  interest  enlarged  to  a  fee.  There  there- 
fore was,  and  probably  still  is,  a  way  open  by  which  the  tenant 
of  the  preceding  particular  estate  can  destroy  the  remainders 
and  give  himself  a  fee. 

Mr.  Price87  says  that,  as  he  understands  the  act,  it  is  not  to 

ment  of  the  same  real  estate  when  mortgaged,  or  other  real  estate  when 
held  for  the  same  uses  and  persons,  unless  the  same  be  required  for  the 
maintenance  or  education  of  parties  having  the  like  interests  vested  or 
expectant,  and  can  be  equally  and  equitably  so  applied,  and  without 
diminution  of  the  capital  that  may  of  right  become  the  property  of 
parties  having  unbarred  interests  or  title  in  remainder,  or  by  executory 
devise. 

(37)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  10. 


§  ICQ  DISCHARGE  OF  PURCHASE  MONEY.  95 

be  used  merely  for  the  purpose  of  enabling  the  owner  of  the 
particular  estate  or  defeasible  title  to  get  one  for  himself  in  fee, 
as  was  the  practice  under  a  common  recovery,  but  to  give  the 
purchaser  a  fee  simple  title  and  security  for  those  in  remainder, 
except  as  to  those  who  could  consume  the  fee  of  right,  and  that 
estates  tail  and  destructible  contingent  remainders  may  be  barred 
if  such  purpose  be  explained  in  the  petition  and  be  sanctioned 
by  the  court  without  accountability  for  the  price  to  those  in  re- 
mainder. 

Mr.  Price  further38  points  out  that  the  Act  of  1853  has  the 
effect  of  a  common  recovery  upon  the  title,  but  does  not,  like  a 
common  recovery,  forfeit  any  estate  but  saves  the  interests  in  re- 
mainder. He  further  says39  that  the  question  whether  the  pur- 
chase money  will  be  discharged  of  the  limitations  in  contingency 
will  depend  upon  whether  that  purpose  is  clearly  set  forth  in  the 
petition  passed  upon  by  the  court.  And40  that  unless  the  particular 
tenant  shall  consent  to  do  justice  to  those  in  remainder  or  having 
executory  interests,  the  court  will  not  decree  a  sale. 

It  seems,  therefore,  that  Mr.  Price  had  not  formed  a  very 
definite  opinion  as  to  whether  the  contingent  remainders  were 
utterly  destroyed  or  not  by  the  proceedings  under  the  act.  The 
language  of  the  act,  however,  seems  to  provide  that  when  the 
contingent  remainders  are  barred  and  defeated  as  to  the  title,  they 
are  barred  and  defeated  as  to  the  purchase  money  also.  This  ques- 
tion was  expressly  raised  in  High's  Estate,41  but  not  decided,  the 
fund  represented  by  the  sale  having  been  distributed  and  passed 
out  of  the  power  of  the  court  and  the  decision  going  off  on  other 
grounds.  Cases  have  arisen  where  real  estate  was  sold  under 
the  Price  Act  to  bar  contingent  remainders,  and  the  fund  was 
distributed  as  if  the  remainders  had  not  been  discharged.42 

There  are  a-lso  some  remarks  to  be  found  in  the  books  which 
seem  to  countenance  the  view  that  the  remainders  are  not  in 
any  peril  by  the  proceedings  under  the  act.43 

(38)  Price  on  The  Act  for  the  Sale  of  Real  Estate,  (1874)  p.  100. 

(39)  Price  on  The  Act  for  the  Sale  of  Real  Estate,   (1874)  p.  99. 

(40)  Price  on  The  Act  for  the  Sale  of  Real  Estate,  (1874),  pp.  102,  103. 

(41)  136  Pa.  222,  see  p.  234   (1890).     See  Keim's  App.,   125   Pa.  480 
(1889). 

(42)  Hinkson  v.  Lees,  181   Pa.  225   (1897). 

(43)  See  the  remarks  of  Green,  J.,  in  Moorehead  v.  Wolff,  123  Pa.  365 
at  373  (1888),  s.  c.  23  W.  N.  C.  167,  36  Pitts.  L.  J.  352,  46  L.  I.  261.    "There 


96  LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.       §  109 

We  have  noticed  all  there  is  to  be  found  in  the  books  on  the 
subject,  and  it  will  therefore  clearly  appear  that  no  statement 
can  be  made  as  to  the  law.  The  chief  argument  on  the  question 
arises  on  the  constitutionality  of  the  act.  It  seems  to  be  essen- 
tial, in  order  that  the  act  shall  come  within  the  provisions  of 
the  constitution,  that  the  purchase  money  be  substituted  for  the 
land,  and  those  having  an  interest  in  the  land  before  the  sale 
shall  have  the  same  interest  in  the  purchase  money  after  the  sale. 

In  answer  to  this  argument,  it  may  be  said  that  a  contingent 
remainder  was  barrable  by  a  common  recovery  before  the  act 
was  passed,  the  constitutionality  of  which  has  never  been 
doubted  because  it  existed  as  a  well  defined  proceeding  for  cen- 
turies before  the  constitution  was  ever  adopted.  There  is  a 
broad  distinction,  therefore,  on  this  ground,  between  the  case  of 
a  contingent  remainder  and  the  case  of  other  interests  in  the  land, 
and  the  Supreme  Court  might  well  decide  that  the  provisions  of 
the  Price  Act  would  authorize  the  court,  when  the  purpose  was 
set  forth  in  the  petition,  to  enter  an  order  not  only  destroying  the 
contingent  remainders  so  far  as  the  land  was  concerned,  but  also 
barring  them  from  any  interest  in  the  fund.  Since,  however, 
they  must  be  notified,  the  chances  are  that  objection  would  be 
made  on  their  behalf,  and  the  court  could  then  very  properly,  if 
the  circumstances  of  the  case  warranted  such  a  proceeding,  make 
an  order  paying  a  portion  of  the  purchase  money  to  the  con- 
tingent remainderman,  and  giving  the  balance  to  the  tenant  of 
the  preceding  particular  estate  absolutely ;  thus,  in  effect,  forcing 
a  compromise  between  the  parties  as  to  the  distribution  of  the 
fund.  Such  a  compromise  would  be  difficult  to  calculate,  and 
it  is  quite  likely  that  if  faced  with  such  an  order,  in  a  majority 
if  the  cases  the  parties  would  be  content  to  let  matters  take  their 
natural  course  and  have  the  purchase  money  await  the  happening 
of  the  event  specified. 

are  certain  contingent  remainders  created  by  the  will  the  mere  'existence  of 
which  would  prevent  any  sale  of  the  property  for  an  adequate  price 
unless  they  can  be  defeated  by  the  order  of  the  Orphans'  Court;  but 
as  the  sixth  section  of  the  Act  of  1853  provides  that  the  purchase  money 
shall  be  substituted  for  the  land  and  protects  all  interests  in  the  land, 
these  remainders  are  in  no  peril,  but  can  be  amply  secured  by  orders  re- 
specting the  purchase  money."  See  Murray's  Est.,  234  Pa.  520  (1912), 
Mestrezat,  J.,  at  p.  523. 


§§  no,  in,  ii2          EXECUTORY  DEVISE.  97 

Section  2  of  the  Act  of  June  15,  i897,4*  expressly  provides 
that  the  purchase  money  shall  be  held  for  the  use  and  benefit  of 
the  same  persons  and  estates,  vested,  contingent  or  executory,  as 
the  land  sold,  etc.,  had  been  held.  It  is  therefore  clear  at  least 
that  in  the  case  of  proceedings  under  this  act  in  the  case  of  a 
remainder  to  a  class,  the  purchase  money  is  not  discharged  from 
the  contingent  remainders. 

Discharge  of  Purchase  Money  from  Equitable   Contingent  Remainders. 

§  110.  Where  there  are  equitable  contingent  remainders,  the 
question  does  not  arise,  because  the  trustee  will  hold  the  pro- 
ceeds just  as  he  did  the  land  upon  the  same  trusts.  There  was 
no  way  before  the  act  was  passed,  under  the  law,  to  divest  such 
remainders  from  the  trust  fund  although  they  might  have  been 
divested  from  the  land  where  the  sale  by  the  trustee  was  ap- 
proved by  the  chancellor. 

Mortgage  of  Property  Subject  to  Contingent  Remainders. 

§  111.  Property  subject  to  contingent  remainders  may  be 
mortgaged  as  well  as  sold  by  proceedings  under  the  act.  The 
effect  of  the  decree  will  be  to  give  the  mortgagee  a  title  free  of 
the  contingent  remainders  and  the  purchaser  at  the  sheriff's  sale 
held  under  proceedings  on  the  mortgage  will  take  a  similar  title. 
When  the  mortgage  is  paid  off,  the  title  of  the  mortgagee  free  of 
contingent  remainders,  will  disappear,  and  the  title  in  the  mort- 
gagor will  be  in  the  same  condition  that  it  was  in  before  the 
mortgage  was  authorized,  and  the  contingent  remainders  will  re- 
main in  full  force  and  effect. 

Executory  Devise. 

§  112.  An  executory  devise  is  of  very  frequent  occurrence, 
but  the  jurisdiction  vested  by  the  act  in  this  case,  to  authorize 
the  sale,  etc.,  of  property  which  is  subject  to  an  executory  devise, 
is  rarely  invoked.  Since  an  executory  devise  can,  properly  speak- 
ing, be  created  only  by  will,  the  jurisdiction  will  in  this  case  be 
entirely  in  the  Orphans'  Court.  This  distinction,  however,  has 
probably  been  lost  sight  of  in  Pennsylvania,  and  cases  will  no 
doubt  occur  where  the  Common  Pleas  will  take  jurisdiction  in 
the  case.  The  petition  should  be  presented  by  the  owner  of  the 

(44)  P.  I,.  IS9- 


98  LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.       §  112 

fee  which  is  subject  to  the  executory  devise,  and  set  out  the  pur- 
pose of  barring  the  executory  devise,  and  if  the  executory  de- 
visee is  in  being  and  ascertained  he  should  be  notified  of  the  pro- 
ceedings.*5 

The  sale  may  be  made  by  the  owner  of  the  fee  which  is  sub- 
ject to  the  executory  devise,  or  the  court  may  appoint  a  third 
party.  Security  should  be  given  to  secure  the  interest  of  the 
executory  devisee.  This  is  necessary  because  executory  devises 
retain  their  grasp  on  the  purchase  money  as  there  was  no  power 
before  the  passage  of  the  act  in  the  owner  of  the  fee  to  destroy 
or  bar  them  as  there  was  in  the  similar  case  of  a  contingent  re- 
mainder.46 

Mr.  Price47  says  that  before  the  act,  executory  devises  and 
interests  were  not  alienable  or  barrable,  and  the  query  arises,  in 
view  of  this  remark,  whether  the  act  is  intended  to  make  the 
executory  devise  alienable.  It  seems  clear,  however,  that  execu- 
tory devises  were  alienable,48  and  there  is,  therefore,  no  occasion 
to  resort  to  the  act  in  such  a  case.  Where  an  executory  devise 
was  limited  after  an  estate  tail,  it  was  destructible  by  a  common 
recovery  or  by  the  process  which  took  the  place  of  that  action 
in  Pennsylvania.49  In  such  case,  therefore,  where  there  is  a  sale 
under  the  act,  there  is  room  to  argue  that  the  executory  devise 

(45)  In  the  following  cases,  the  estate  was  subject  to  an  executory 
devise  and  ordered  sold:   Greenawalt's  App.,  37  Pa.  95  (1860),  see  Greena- 
walt  v.  Greenawalt,  71  Pa.  483  (1872),  where  the  petition  was  by  owner 
of  the  fee,  executory  devisee  objecting.     In  Moore's  Estate,  9  Phila.  326 
(J873),  s.  c.  30  L.  I.  176,  where  the  minor  had  an  estate  in  fee  subject  to 
an  executory  devise,  and  upon  application  of  the  executory  devisee,  an 
order  of  sale  which  had  been  issued  on  petition  of  the  guardian  was  re- 
voked, the  court  said:    "It  is  enough  to  say  that  it  would  be  unwise  to 
sell  the  real  estate  of  a  minor  in  a  case  where  a  serious  question  of  title 
may  be  raised.     It  might  deter  bidders  and  result  in  a  sacrifice  of  the 
property.     We  think  there  is  such  doubt  as  to  this  title  and  therefore 
revoke  the  order  of  the  sale."    It  was  not  clear  what  act  the  petition  was 
presented  under.     If  under  the  Act  of  1853,  the  sale  would  have  been 
proper.     The  court  did  not  consider  this  point  apparently,  it  being  as- 
sumed that  the  interest  of  the  minor  was  contingent  upon  his  arrival  at 
the  age  of  twenty-one  years.    This  erroneous  view  of  the  limitation  prob- 
ably led  to  the  error  in  the  decision. 

(46)  Price  on  The  Act  for  the  Sale  of  Real  Estate,  (1874)  p.  9. 

(47)  Price,  The  Act  for  the  Sale  of  Real  Estate,  (1874)  p.  9. 

(48)  Foulke,  Rule  Against  Perpetuities  in  Penna.,  (1909)   Sec.  79. 

(49)  Foulke,  Rule  Against  Perpetuities  in  Penna.,  (1909)  Sec.  79,  n.  6. 


§  ii3     LIEN  OF  DEBTS  OF  A  DECEDENT  NOT  OF  RECORD.  99 

is  destroyed  and  the  proceeds  of  the  sale  belong  absolutely  to 
the  owner  of  the  estate  tail.  This  question,  however,  will  only 
arise  in  the  case  of  an  old  estate  tail,  as  under  the  Act  of  April 
27,  1855,*°  all  estates  tail  are  turned  into  estates  in  fee. 

Preliminary  Discussion  of  Lien  of  Debts  not  of  Record. 
§  113.  Under  the  statutes  making  the  land  of  a  decedent 
liable  for  his  debts,  it  was  frequently  difficult  for  his  heirs  or  de- 
visees or  anyone  else  interested  in  the  land  to  find  a  purchaser, 
and  this  difficulty  was,  at  the  time  the  act  was  passed,  of  a 
greater  practical  inconvenience  than  at  present,  as  at  that  time 
the  lien  was  for  five  years,52  whereas  it  is  now  only  for  two.63 
This  provision  was  designed  to  furnish  a  means  whereby  the 
owner  could  convey  the  land  clear  of  the  lien  of  the  debts.04 

(50)  P.  L.  368,  Sec.  i. 

(52)  Act  of  February  24, 1834,  P.  L.  70,  sec.  24.    By  Sec.  42  provides  that : 
Real  estate  of  a  decedent  sold  by  executor  or  administrator  under  order  of 
Orphans'  Court  in  proceedings  in  partition  shall  not  be  liable  in  the  hands  of 
the  purchaser  to  the  debts  of  the  decedent  where  the  sale  is  made  after  the 
expiration  of  two  years   from  the  granting-  of  letters.     Where  sale  is 
within  two  years,  lien  of  debt  is  not  discharged,  Wilson's  App.,  45   Pa. 
435   (1863);    Bricker's  Est.,  22  Super.  Ct.  12  (1903). 

(53)  Act  June  8,  1893,  P.  L.  392. 

(54)  To  meet  the  difficulty,  (lien  of  decedent's  debts)   we  have  statu- 
tory remedies  provided  of  late  years.    The  Act  of  April  18,  1853,  enumer- 
ated as  one  of  the  occasions  for  authorizing  a  sale  by  the  court,  "where 
a  decedent's  estate  is  subject  to  the  lien  of  debts  not  of  record."     Not 
long  after  the  passage  of  this  act  the  question  arose  whether  a  private 
sale  ordered  by  the  court  would  discharge  the  lien  of  the  debts.     The 
grounds  for  the  doubt  were,  first,  that  it  was  contrary  to  the  analogies 
of  the  legislation  of  this  State,  to  destroy  the  rights  of  creditors  by  a 
judicial  sale  without  notice  to  them  at  least  by  advertisement ;  and  second, 
the  language  of  the  act  itself,  which  provided  that  "by  every  public  sale, 
all  liens  should  be  discharged."     In  order  to  remove  this  doubt,  an  act 
was  passed  in  1867  which  expressly  authorized  this  result  in  a  private 
sale.     This  has  been  much  opposed,  and  at  a  previous  session,  a  bill  to 
the  same  effect  had  been  vetoed  by  the  Governor  under  the  advice  of 
the  then  Attorney  General,  Mr.  Meredith.    It  certainly  exposes  the  rights 
of  creditors  to  great  risk,  and  even  if  the  provision  as  to  security  is  care- 
fully enforced  by  the  court,  yet  the  facility  which  it  offers  for  sham  sales 
at  an  undervalue  for  the  benefit  of  those  interested  in  the  estate,  cannot 
be  overlooked.    It  is  clear  that  no  such  sale  should  ever  be  allowed,  unless 
the  executor  or  administrator  is  made  a  party  as  the  representative  of 
creditors.     Indeed  under  the  terms  of  the  act,  which  require  notice  to 
all  persons  having  any  present  or  expectant  interest  in  the  property  this 


ioo      LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.  §§  114, 115 

Provisions  of  the  Act. 

§  114.  The  act  provides  that  the  sale,  etc.,  may  be  authorized 
"whenever  a  decedent's  real  estate  is  subject  to  the  lien  of  debts 
not  of  record."55  As  pointed  out  by  Penrose,  J.,56  the  jurisdiction 
to  authorize  a  sale  free  of  the  lien  of  the  debts  of  a  decedent  is  in 
the  interests  of  free  alienation,  and  in  such  a  case  the  courts  should 
not  be  astute  to  find  reasons  for  refusing  to  relieve  the  owners 
from  the  difficulty.57 

Act  of  1832  Distinguished. 

§  115.  This  clause  of  the  act  has  given  some  difficulty  be- 
cause the  Act  of  March  29,  i832,58  authorizes  a  sale  for  the  pay- 
ment of  debts  in  the  manner  and  under  the  circumstances  therein 
specified,  and  the  profession  seems,  strangely  enough,  to  find  some 
difficulty  in  distinguishing  between  the  two  acts.  The  distinction 
is  clear.  Under  the  Act  of  1832,  the  sale  is  for  the  payment  of 
debts,  and  it  must,  therefore,  be  shown  that  there  are  debts  to 
pay.  Under  the  Act  of  1853,  the  sale  is  merely  to  relieve  from 
the  lien  of  debts  actual  or  possible,  and  it  makes  no  difference, 
therefore,  whether  there  are  any  debts  in  point  of  fact  or  not.69 
The  motion,  however,  that  the  Act  of  1853  authorizes  a  sale  for 
the  payment  of  debts  took  a  firm  hold  on  the  professional  mind, 
and  seems  hard  to  kill.60  The  difficulty  has  been  that  the  pro- 
seems  absolutely  necessary  to  the  validity  of  the  sale,  even  if  we  do  not 
go  further  and  say  that  direct  notice  to  the  creditors  by  advertisement 
is  also  requisite.  Henry  Wharton,  Lien  of  Decedent's  Debts  in  Penna., 
6  W.  N.  C.  545  at  549  (1879). 

(55)  For  a  criticism  of  the  use  of  the  word  "decedent,"  see  remarks 
of  Henry  Wharton,  6  W.  N.  C.  545  (1879).     Whatever  error  there  is  in 
tHe  meaning  of  this  word  or  its  pronunciation,  usage  has  made  it  impos- 
sible to  get  rid  of  the  error. 

(56)  In  Orwig's  Est,  19  Phila.  158,  46  L.  I.  99  (1889),  7  Pa.  C.  C.  71. 

(57)  Jermon  v.  Lyon,  81  Pa.  107  (1876). 

(58)  P.  L.  190. 

(59)  In  Green's  Est.,  i  Del.  Co.  521    (1883),  there  was  a  petition  for 
order  to  sell  lands  of  the  decedent  which  were  subject  to  the  lien  of 
debts  not  of  record.    Order  to  sell  granted.     Court  said  that  it  was  not 
necessary  to  show  in  fact  that  there  were  debts  not  of  record.    The  ex- 
istence of  the  statutory  liability  was  sufficient  to  give  the  court  juris- 
diction under  the  Act  of  1853. 

(60)  Act  of  March  29,  1832,  P.  L.  190,  Sec.  31 :    The  Orphans'  Court 
which  possesses  jurisdiction  of  the  account  of  an  executor  or  adminis- 
trator, shall  have  power  to  authorize  a  sale  or  mortgage. 


§  ii5    LIEN  OF  DEBTS  OF  A  DECEDENT  NOT  OF  RECORD.       101 

ceedings  under  the  earlier  act  of  1832  were  sometimes  irregular, 
and  it  was  sought  to  justify  them  under  the  provisions  of  the 
Price  Act,  which,  however,  the  Supreme  Court  clearly  said  could 
not  be  done.61 

(A)  On  application  of  executor  or  administrator  setting  out 

(1)  That  personal  estate  is  insufficient  to 

(a)  pay  debts  and  provide  for  education  and  maintenance 

of  minor  children 

(b)  or  pay  debts. 

(B)  Or  of  any  person  interested. 

(2)  That  on  final  settlement  of  the  administration  account  it 

appears  that 

(a)  there  are  not  sufficient  personal  assets  to  pay  balance 
due  from  estate  of  the  decedent. 

(C)  The  executor  or  administrator  must 

(1)  Exhibit  to  the  court  inventory  and  appraisement  of  all  per- 

sonal estate. 

(2)  File  full  and  correct  statement  of  all  real  estate. 

(3)  File  a  list  of  debts. 

(4)  No  authority  to   sell  to  be  granted  until  the  executor  or 
administrator  shall  have  filed  a  bond  with  sufficient  security 
to  be  approved  by  the  court. 

(5)  No  real  estate  shall  be  disposed  of  contrary  to  the  terms 
of  any  marriage  settlement. 

(6)  The  mansion  house  or  the  most  profitable  part  of  the  es- 

tate shall  be  reserved  to  the  last. 

(7)  The  court  may  refer  the  case  to  an  examiner. 

(8)  Sale  to  be  public  upon  twenty   days'  notice  by  advertise- 
ment in  at  least  one  newspaper  published  in  the  county,  if 
there  be  one;    if  none,  then  in  an  adjoining  county  and 
by  handbills  affixed  in   at  least  three  of  the  most  public 
places  in  the  vicinity  of  such  estate. 

(9)  Where  real  estate  is  situate  in  another  county  or  in  the  same 

and  another  county,  the  Orphans'  Court  having  jurisdiction 
of  the  accounts  shall  be  satisfied  with  the  propriety  of  the 
sale,  and  if  so  satisfied,  shall  issue  an  order  authorizing  the 
Orphans'  Court  of  the  county  where  the  lands  lie  to,  on 
petition  of  administrator  or  executor,  make  an  order  for 
a  sale  or  mortgage,  return  of  sale  to  be  made  to  the 
Orphans'  Court  of  the  county  where  the  real  estate  lies, 
whereupon  the  same  shall,  if  approved  by  the  court,  be  con- 
firmed. 
(61)  Jacoby  v.  McMahon,  174  Pa.  133  (1896)  Dean,  J.,  at  136,  s.  c.  189 

Pa.  i   (1898).    See  opinion  of  Clark,  J.,  in  Spencer  v.  Jennings,  114  Pa. 

618  (1888),  at  625,  that  the  Act  of  1853  does  not  authorize  a  sale  for  the 

payment  of  debts. 


102  LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.  §§  116, 117, 118 

In  order  that  the  reader  may  more  clearly  understand  the 
cases  to  which  that  act  applies,  we  shall  now  notice  a  few  of  the 
decisions. 

§  116.  In  Grenawalt's  Appeal,63  the  owner  in  fee  of  the  prop- 
erty, who  was  also  the  executor  of  the  decedent,  petitioned  for 
authority  to  sell,  setting  out  that  the  sale  was  for  (i)  the  pay- 
ment of  a  legacy,  (2)  the  discharge  of  debts  against  the  estate, 
(3)  the  purpose  of  repair  and  improvement.  It  appeared  that 
the  legacy  was  not  a  charge  on  the  real  estate,  and  the  court  held 
that  it  was  proper  to  authorize  the  sale  for  the  second  and  third 
purposes.  The  language  of  Thompson,  C.  J.,63  very  strongly 
countenanced  the  doctrine  that  there  is  jurisdiction  under  the  act 
to  sell  for  the  payment  of  debts.  The  decision  was  clearly  cor- 
rect on  the  facts,  as  the  fee  was  subject  to  an  executory  devise, 
and  there  was,  therefore  a  case  coming  within  another  provision 
of  the  act.64 

§  117.  The  same  notion,  that  the  act  authorized  a  sale  for 
the  payment  of  debts,  was  obviously  entertained  by  the  reporter 
in  preparing  the  syllabus66  in  Hower's  Appeal,  although,  strangely 
enough,  there  is  nothing  whatever  in  the  case  to  which  the  state- 
ment can  be  referred.66 

§  118.  In  Pierce's  Est.,67  the  court,  in  an  opinion  by  Allison, 
P.  J.,  said  that  in  the  case  of  a  sale  by  a  guardian  of  a  minor, 
where  the  land  was  subject  to  the  lien  of  decedent's  debts  not 
of  record,  it  was  necessary  to  join  the  personal  representa- 
tive of  the  decedent  so  that  the  title  of  the  purchaser  would  be 
free  from  liens.  Since,  however,  the  act  authorizes  the  sale  free 
from  liens  for  that  very  purpose,  and  there  is  no  provision  di- 
recting the  joinder  of  the  personal  representative,  a  sale  by  the 
personal  representative  for  the  payment  of  debts  would,  under 
this  proviso,  be  improper.  It  seems  pretty  clear  that  the  learned 
judge  was  laboring  under  a  misapprehension  as  to  the  construc- 

(62)  37  Pa.  95  (1860),  s.  c.  Luz.  L.  Obs.  243;    sub.  nom.  Greenwalt's 
App.,  17  L.  I.  404. 

(63)  See  §  30,  ante. 

(64)  See  §  in,  ante,  executory  devise. 

(65)  55  Pa.  337  (1867). 

(66)  See  also  remarks  of  Rice,  P.  J.,  in  Kiskaddon  v.  Dodds,  21  Super. 
Ct.  351  at  357,  3.58  (1902). 

(67)  7  Phila.  475  (1869),  s.  c.  26  L.  I.  13,  sub.  nom.  Clothier's  Pet.,  3 
Brews.  254. 


§§  1 19,120,121  LIEN  OF  DEBTS  OF  A  DECEDENT  NOT  OF  RECORD.  103 

tion  of  the  act,  and  that  this  is  so  is  further  shown  by  the  cir- 
cumstance that  this  practice  has  been  disregarded  and  the  courts 
do  not  require  the  joinder  of  the  personal  representative. 

§  119.  In  Orwig's  Estate,68  the  heirs  of  the  decedent  pe- 
titioned for  leave  to  mortgage  under  the  Act  of  1853,  and  it  was 
held  that  the  mortgagee  would  take  a  title  free  of  the  lien  of 
debts  not  of  record.  It  did  not  appear  that  the  mortgage  was 
for  the  purpose  of  raising  money  to  pay  debts,  and  one  of  the 
owners  in  the  case  was  a  minor,  which  would  of  itself  sustain  the 
jurisdiction  of  the  court. 

§  120.  In  Yard's  Estate,69  the  guardian  of  a  minor  had  a 
sale  of  his  ward's  interest  confirmed  under  the  Price  Act,  the 
land  being  at  the  time  subject  to  the  lien  of  the  debts  not  of 
record  of  the  father  of  the  minor. 

§  121.  In  Spencer  v.  Jennings,70  an  administratrix  made  a 
mortgage  under  order  of  the  court,  to  raise  money  to  pay 
debts  not  of  record,  and  it  was  held  that  the  mortgage  was 
void,  as  the  court  was  without  jurisdiction  to  make  the  de- 
cree. The  heirs  were  minors  but  that  circumstance  was  im- 
material as  the  petition  was  presented  by  the  administrator  and 
not  by  the  guardian.  Trunkey,  P.  J.,n  said  that  a  petition  by  an 
executor  or  administrator  for  authority  to  sell  for  the  payment 
of  debts,  must  be  presented  under  the  provisions  of  the  Act  of 
March  29,  1832, 72  and  the  clause  in  the  Price  Act73  providing 
that  nothing  contained  in  the  act  shall  be  taken  to  repeal  or  im- 
pair the  authority  of  any  other  act  of  assembly  relating  to  sales, 
prevented  the  repeal  of  the  Act  of  1832.  The  circumstance  that 
the  petition  was  presented  in  the  wrong  county  was  immaterial 
in  this  aspect  of  the  case.  Petition  was  presented  in  the  county 
where  the  land  lay,  which  is  proper  under  Act  of  1853,  but  not 
proper  under  the  Act  of  1832,  under  which  petition  must  be  pre- 
sented to  the  court  having  jurisdiction  of  the  accounts. 

(68)  7  Pa.  C.  C.  71   (1889),  s.  c.  19  Phila.  158,  46  L.  I.  99- 

(69)  15  W.  N.  C.  422  (1884),  s.  c.  17  Phila.  436. 

(70)  114  Pa.  618  (1886),  s.  c.  19  W.  N.  C.  10,  42  L.  I.  230,  34  Pitts. 
L.  J.  243;    affirmed  on  re-argument  in  123  Pa.   184  (1889),  s.  c.  23  W. 
N.  C.  43,  46  L.  I.  158,  36  Pitts.  L.  J.  227.    See  139  Pa.  198  (1891). 

(71)  At  p.  624. 

(72)  §  31  P.  L.  190. 

(73)  See  §  20,  24,  ante. 


104       LIMITATIONS  OF  AND  LI£NS  UPON  THE  TITLE.  §§122, 123 

On  reargument,74  the  court,  Clark,  J.,  seemed  to  draw  the  dis- 
tinction that  there  was  no  jurisdiction  when  the  petition  was 
presented  by  an  administrator,  but  that  if  the  minor  had  an  in- 
terest in  the  land  and  presented  a  petition  setting  forth  that  it  was 
subject  to  the  lien  of  debts  not  of  record,  there  would  be  jurisdic- 
tion to  order  a  sale. 

§  122.  In  Burkhard's  Estate,76  the  executrix  of  a  decedent 
who  died  domiciled  in  Philadelphia  County,  presented  a  petition 
to  the  Orphans'  Court  of  Schuylkill  County  to  confirm  a  private 
sale  of  a  certain  lot  in  Pottsville,  so  that  it  would  be  clear  of  the 
lien  of  the  debts  of  the  decedent  not  of  record.  The  petition  set 
out  that  it  was  proposed  to  use  part  of  the  proceeds  in  payment 
of  a  mortgage  on  decedent's  property  in  Philadelphia,  and  the 
court  very  properly  held  that  there  was  no  jurisdiction. 

§  123.  In  West  v.  Cochran,76  the  administrator  d.  b.  n.  c.  t. 
a.  had  presented  a  petition  in  the  usual  form  to  sell  for  the  pay- 
ment of  debts,  upon  which  an  alias  order  to  sell  had  been  made, 
under  which  the  administrator  had  made  a  sale  of  a  portion  of 
the  real  estate,  return  of  which  sale  was  before  the  court  for 
confirmation,  whereupon  the  widow  and  guardian  of  the  minor 
children  of  the  decedent  filed  exceptions  to  the  confirmation  of 
the  sale,  upon  which  a  rule  to  set  aside  the  sale  was  granted  and 
which,  with  the  exceptions,  remained  undetermined.  In  this  state 
of  the  record,  the  guardian  of  the  minor  presented  a  petition 
under  the  Price  Act,  setting  forth  that  it  would  be  to  the  interest 
and  advantage  of  the  minor  to  mortgage  the  real  estate  and  use 
the  proceeds  to  pay  off  the  debts,  and  then  appropriate  the  in- 
come from  the  property  to  the  liquidation  of  the  mortgage.  The 
court  held  that  the  order  directing  the  execution  of  the  mortgage 
was  correct.  The  decision  is  clearly  sound,  as  the  act  authorizes 
the  sale,  etc.,  of  a  minor's  estate  whenever  it  is  to  his  interest 
and  advantage  to  do  so.  The  propriety  of  the  course  adopted  in 
this  case  was  so  obvious,  that  the  circumstances  that  incidentally 
the  proceeds  of  the  mortgage  were  used  to  pay  the  debts  and 
thus  carry  out  a  purpose  contemplated  by  the  earlier  acts,  and 
which  had  been  decided  were  not  within  the  provisions  of  this 

(74)  123  Pa.  184. 

(75)  I  Mona  474  (1889),  affirming  6  Pa.  C.  C.  374  (1889). 

(76)  104  Pa.  482   (1884)  ;    sub.  nom.  West  v.  Cochrane,  41  L,.  I.  330, 
31  Pitts.  L.  J.  373- 


§§124, 125  LIEN  OF  DEBTS  OF  A  DECEDENT  NOT  OF  RECORD.     105 

act,  was  not  material.  The  language  of  Green,  J.,  however,  does 
not  meet  the  real  point  in  the  case  and  seems  to  revert  to  the  un- 
sound position  taken  by  Thompson,  C.  J.,  in  Grenawalt's  Appeal.77 

Distinction  Between  Price  Act  and  Earlier  Acts. 

§  124.  The  distinction  is  now  clearly  drawn  that  the  provision 
in  the  act  covers  the  case  where  it  is  desired  to  sell  land  which 
is  liable  to  the  lien  of  debts,  as  where  the  parties  interested  are 
unable  to  make  a  good  title  because  of  the  lien  of  debts,  the  dis- 
tinction being78  between  a  sale  to  discharge  the  lien  of  debts  not 
of  record  and  a  sale  for  the  purpose  of  raising  a  fund  to  pay 
these  debts. 

The  principle  that  this  proviso  does  not  authorize  a  sale  by  an 
executor  or  administrator  for  the  payment  of  debts  has  been 
followed  in  several  other  cases  collected  in  the  note.79  The  juris- 
diction under  the  Act  of  1853  is  irrespective  of  the  state  of  the 
accounts  or  the  account  of  personal  estate,  and  is  designed  solely 
to  furnish  a  means  of  disposing  of  the  title  which  is  subject  to 
the  lien  of  debts. 

Private  Sale  Discharges  Lien  of  Debts  not  of  Record. 
§  125.     A  doubt  was  raised  whether  a  private  sale  under  the 

(77)  37  Pa.  95   (1860).     See  §  30,  ante:    "All  the  facts  required  by 
the  Act  of  1853  to  give  jurisdiction  to  the  Orphans'  Court  to  make  the 
order  to  mortgage  were  present  and  were  substantially  set  out  in  the  pe- 
tition.   There  is  no  express  language  in  the  act,  nor  are  there  any  words 
producing  a  necessary  inference  that  an  order  to  raise  money  to  pay  debts 
can  only  be  ganted  to  an  executor  or  administrator,  nor  is  there  any  pro- 
hibition, express  or  implied,  against  the  granting  of  such  an  order  to  a 
guardian.    On  the  contrary,  the  letter  of  the  act  expressly  authorizes  the 
court  to  grant  to  a  guardian  an  order  to  sell,  lease  or  mortgage,  the 
real  estate  of  minors,  'whenever  a  decedent's  real  estate  is  subject  to 
the  lien  of  debts  not  of  record.'     We  could  not  deny  the  power  except 
by  implication  against  the  proper  and  natural  meaning  of  the  words  of 
the  statute,  and  this  we  cannot  do,"  Green,  J.,  in  West  v.  Cochran,  104 
Pa.  482  at  489  (1884),  sub.  nom.  West  v.  Cochrane,  41  L.  I.  330,  31  Pitts. 
L.  J.  373-    See  remarks  of  Clark,  J.,  on  this  case  in  Spencer  v.  Jennings, 
123  Pa.  184  (1889)  at  196. 

(78)  As  put  by  Hanna,   P.  J.,  in  Lambrecht's  Est,  22  W.  N.   C.  24 
(1888);    Trunkey,  J.,  in  Spencer  v.  Jennings,  114  Pa.  618  (1886),  s.  c.  19 
W.  N.  C.  10,  44  L.  I.  230,  34  Pitts.  L.  J.  243. 

(79)  Miller  v.  Spear,  21  W.  N.  C.  554  (1887);    Lambrecht's  Est,  22 
W.  N.  C.  24  (1888)  ;   confer  Bloodhart's  Est.,  2  Pa.  C.  C.  476  (1886). 

8 


io6         LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.      §  126 

act  discharged  the  lien  of  debts  of  a  decedent,  and  although  Mr. 
Price80  was  of  the  opinion  that  the  private  sale  would  discharge 
the  lien  of  the  debts,  the  doubt  was  sufficiently  strong  to  necessi- 
tate the  intervention  of  the  legislature.  Accordingly  it  was  pro- 
vided by  the  Act  of  March  23,  iSo"/,81  that  a  private  sale  dis- 
charged the  liens.82 

No  Jurisdiction  where  Lien  of  Debts  has  Expired. 

§  126.  Where,  however,  a  stranger  paid  the  debts  of  the  de- 
cedent, and  petitioned  for  an  order  of  sale  under  the  Price  Act, 
the  court  dismissed  the  petition,83  as  there  had  been  no  action 
brought  by  the  creditors  within  the  statutory  period  to  preserve 
the  lien  of  debts,  and  the  stranger,  therefore,  paid  claims  which 
could  not  be  asserted  against  the  land.  Non  constat,  however, 
that  if  the  debts  had  been  a  lien  on  the  land,  he  could  have  been 
permitted  to  succeed  in  the  petition. 

In  Crawford's  Estate,8*  there  was  a  sale  under  the  Price  Act 
upon  petition  by  the  widow  and  heirs  to  relieve  from  the  lien 
of  debts  not  of  record,  which  was  made  within  two  years  after 
the  decedent's  death  but  not  confirmed  before  the  expiration  of 
the  two  years.  The  two  years  expired  on  August  16,  1907 ;  the 
alias  order  was  issued  June  15,  1907;  the  property  was  sold 
July  18,  1907;  return  of  the  alias  order  was  on  September  16, 
1907,  and  upon  exceptions  to  the  confirmation  being  filed  by  the 
purchaser,  the  action  of  the  court  below  confirming  the  sale  was 
reversed  on  appeal,  as  the  purchaser  would  take  no  title. 

(80)  Price  on  the  Act  for  the  Sale  of  Real  Estate,  p.  132.    See  remarks 
of  Henry  Wharton,  6  W.  N.  C.  545  (1879). 

(81)  P.  L.  43-    The  exact  words  are  as  follows :  "Section  2.  That  private 
sales,  made  by  order  of  court,  under  the  said  act  of  the  eighteenth  of 
April,  one  thousand  eight  hundred  and  fifty-three,  shall  discharge  the  prem- 
ises sold  from  the  lien  of  the  debts  of  the  decedent,  except  debts  of  record, 
and  debts  secured  by  mortgage:    Provided,  That  the  security,  required  by 
said  act,  shall  have  been  duly  entered." 

(82)  The  executor,  trustee  or  administrator,  or  any  person  interested, 
may  petition  the  proper  court  for  a  decree  directing  that  the  real  estate 
of  the  decedent  shall  be  held  and  enjoyed  free  and  clear  of  any  lien  of 
debts  not  of  record.    Act  of  June  8,  1893,  P.  L.  392,  Sec.  2,  3. 

(83)  Moyer's  Est,  11  Pa.  C.  C.  528  (1884),  s.  c.  I  D.  R.  600,  9  Lane. 
L.  R.  203,  3  North.  Co.  189.    There  is  a  misprint  in  the  county  court  report 
in  this  case:    citation  should  be  petition  at  end  of  report,  and  there  is  a 
misprint  of  1863  for  1853. 

(84)  221  Pa.  131  (1908). 


§§  127, 128, 129  MODIFIED  FEES.  107 

Distribution  of  Proceeds  of  Sale. 

§  127.  The  creditors  of  a  decedent  are,  of  course,  to  receive 
payment  out  of  the  proceeds  first,85  which  where  there  are  no 
debts,  may  be  awarded  directly  to  the  heirs,86  or  the  executor, 
trustee  or  devisee  or  person  holding  the  title  to  the  land.  In  such 
a  case,  however,  security  must  be  ordered  to  protect  any  possible 
creditors. 

Act  Applies  to  Executors  Selling  Under  a  Power. 

§  128.  The  act  applies  where  the  title  to  the  land  is  held  by 
an  heir,  devisee,  trustee  or  executor,  and  whether  there  is  or  is 
not  power  to  sell  the  land. 

An  executor  selling  under  a  power  of  sale  in  a  will  may  have 
the  sale  ratified  under  this  provision  of  the  act  so  that  the  pur- 
chaser will  take  a  title  free  from  the  lien  of  debts,87  although  the 
exercise  of  such  a  power  will  relieve  from  the  lien  of  debts.  It 
seems  that  a  purchaser  may  insist  upon  the  executor  resorting 
to  the  court  in  this  case  in  order  that  the  title  may  be  relieved 
from  the  doubt  which  may  exist  as  to  whether  the  power  of  sale 
is  sufficiently  worded  as  to  discharge  the  lien  of  debts.88 

Modified  Fees. 

§  129.  A  modified  fee  is  a  variation  of  the  fee  simple  estate, 
and  appears  on  several  forms,  e.  g.,  conditional  fees,  estates 
tail,  base  fees,  qualified  fees,  and  determinable  fees.89  Of  these 
the  estate  tail  is  separately  provided  for  and  has  already  been 
discussed.90  Of  the  others,  the  only  one  which  really  arises 
in  Pennsylvania  is  the  case  of  the  determinable  fee.  A  determin- 
able fee  exists  where  there  is  a  limitation  to  a  grantee  and  his 
heirs  until  the  happening  of  a  specified  contingency,  the  con- 

(85)  Yard's  Est,  17  Phila.  436  (1885),  s.  c.  15  W.  N.  C.  422,  42  L.  I. 
17.    But  debts  which  have  lost  their  lien  cannot  be  paid  out  of  the  pro- 
ceeds, cfr..  Commonwealth  v.  Pool,  6  Watts  32  (1837). 

(86)  Green's  Est.,  5  Pa.  C.  C.  605   (1888),  s.  c.  19  Phila.  55,  45  L.  I. 
174,  5  Lane.  L.  R.  217 

(87)  Wainwright's  Est.,  n  Phila.  147  (1876),  s.  c.  33  L.  I.  280,  3  Law 
Times,  O.  S.  95.    Confer  Donnelly  y.  Byers,  234  Pa.  339  (1912). 

(88)  For  a  further  discussion  of  this,  see  59  Univ.  of  Penn.  Law  Re- 
view, p.  597. 

(89)  Foulke,  Rule  Against  Perpetuities  in  Penna.,   (1909)   §  21. 

(90)  See  §  90,  ante. 


io8         LIMITATIONS  OF  AND  LIENS  UPON  THE  TITLE.      §  129 

tingency  being  such  that  it  may  never  happen  or  so  long  as  an 
existing  state  of  things  shall  endure  the  state  of  affairs  being 
such  that  it  may  endure  forever.  In  all  these  cases  the  donor  has 
a  possibility  of  reverter  after  the  fee  which  is  a  vested  interest.91 

The  act  provides  that  such  sale,  etc.,  may  be  made  where  prop- 
erty is  devised  or  granted  for  special  or  limited  purposes.  This 
clause  may  have  been  designed  to  cover  the  case  of  a  determin- 
able  fee.  The  difficulty,  however,  in  exercising  the  jurisdiction 
under  the  act  as  to  a  case  of  this  kind  lies  in  the  circumstance 
that  this  possibility  of  reverter  is  a  vested  interest,  and  conse- 
quently it  seems  impossible  to  exercise  the  jurisdiction  without 
the  consent  of  that  interest.92 

It  was  decided  in  Saxton  v.  Mitchell,93  that  the  possibility 
of  reverter  was  a  vested  interest  against  the  consent  of  the  owner 
of  which  the  court  would  have  no  jurisdiction  to  direct  a  sale 
under  a  special  act  of  assembly. 

In  Gumbert's  Appeal,94  land  had  been  conveyed  to  certain 
Presbyterian  and  Lutheran  societies  for  the  only  use  and  purpose 
of  a  church  and  churchyard  and  burying  place  and  for  supplies 
of  the  gospel  against  the  grantor,  his  heirs  and  assigns  forever.  It 
did  not  appear  whether  the  societies  were  incorporated  or  how  the 
title  was  taken.  The  ground  was  subsequently  abandoned  after  a 
church  had  been  built  thereon  as  a  place  of  worship,  but  still  con- 
tinued to  be  used  as  a  place  for  the  burial  of  the  dead.  The  so- 
cieties were  subsequently  dissolved  and  on  petition  of  one  Jacob 
Kepple,  who  alleged  that  he  was  the  only  surviving  member  of 
the  council  of  the  church  which  had  been  erected  on  the  ground, 
the  court  ordered  a  sale  of  the  property  under  the  Price  Act, 

(91)  Foulke,  Rule  Against  Perpetuities  in  Penna.,  etc.,  (1909)  §  30. 

(92)  See  remarks  of  Archibaald,  J.,  in  Church's  Pet.,  i  L,ack.  L.  N.  89 
at  98  (1887). 

(93)  78  Pa.  479  (1875).     In  this  case  the  testator,  who  died  in  1857, 
provided   as   to  a  certain   tract   of   twenty   acres   of   land,   as    follows: 
"...  which  I  hereby  reserve  forever  for  the  use  of  the  members  of 
the  Methodist  Episcopal  Church  to  hold  their  camp  meetings  on."     An 
attempt  was  made  to  sell  the  land  under  the  Act  of  1853.    The  court  held 
that  the  act  did  not  apply,  and  a  special  act  of  the  legislature  was  passed 
in  1871.    The  case  came  up  on  an  application  of  the  parties  authorized 
under  the  special  act  for  the  appointment  of  a  trustee  and  an  order  of 
sale.    The  court  held  that  this  act  was  unconstiutional  and  dismissed  the 
application  on  the  objection  of  the  heirs  and  legatees  of  the  testator. 

(94)  no  Pa.  496  (1885). 


§  129  MODIFIED  FEES.  109 

and  appointed  a  trustee  to  make  the  sale,  who  delivered  the  deed 
to  the  purchaser.  On  exceptions  being  filed  by  a  number  of 
persons  who  were  members  of  the  congregation  which  had  wor- 
shipped at  the  church  constructed  on  the  ground  or  who  had 
relatives  buried  in  the  graveyard  who  did  worship  at  the  church, 
the  court  set  aside  the  sale  and  ordered  the  deed  to  the  purchaser 
delivered  up  and  cancelled  on  the  ground  that  the  petition  was 
made  by  a  person  not  in  interest.  The  court  further  said  that  this 
was  a  case  of  a  grant  for  a  special  purpose,  and  that  as  long  as 
the  burial  use  continued,  the  ground  could  not  revert  to  the 
heirs  of  the  donor.  The  case,  therefore,  does  not  really  touch 
the  question  of  the  right  of  the  owner  of  the  possibility  of  re- 
verter  to  object  to  the  sale.  No  case  has  arisen  involving  the 
application  of  the  clause  of  the  act,  and  it  seems  doubtful  whether 
the  jurisdiction  is  constitutional  as  against  the  objection  of  the 
owner  of  the  possibility  of  reverter. 


no  TRUSTS.  §  130 


CHAPTER  6. 

Trusts. 

Preliminary  discussion  §  130 

Jurisdiction  of  equity  independent  of  the  act  §  131 

Act  of  1851,  April  3,  P.  L.  305 §  132 

Jurisdiction  now  probably  limited  by  the  act §  133 

Provisions  of  the  act  as  to  trusts.     Nature  of  cestui  que  trust 

immaterial §  134 

Where  trustee  has  power  which  cannot  be  exercised  §  135 

Vested  equitable  remainders   §  136 

The  Petition    §  137 

Notice  to  and  consent  of  the  cestui  que  trust  §  138 

Sole  and  separate  use   §  139 

Disposition  of  equitable  title  of  cestui  que  trust  §  140 

Sale  by  trustee  to  cestui  que  trust  §  141 

Proceeds  of  the  sale   §  142 

Trusts  for  a  charity  §  143 

Preliminary  Discussion. 

§  130.  A  trustee  has  power  as  dominus  of  the  legal  title  to 
dispose  of,  pledge  or  deal  with  it  at  law.  Since  all  persons  deal- 
ing with  him  who  have  notice  of  the  trust  are  subject  to  the 
claim  of  the  cestui  que  trust,  it  follows  that  he  is  practically 
helpless  so  far  as  any  disposition  of  the  legal  title  is  concerned, 
unless  the  consent  of  the  cestui  que  trust  can  be  obtained,  which 
is  not  always  possible,  or  unless  there  is  a  power  in  the  instru- 
ment creating  the  trust.  The  case  where  a  trust  is  superimposed 
on  the  legal  title  will  therefore  frequently  present  an  obstacle  to 
free  alienation  or  administration  of  the  trust  estate  either  of  which 
may  be  to  the  interest  and  advantage  of  the  cestui  que  trust. 
A  trustee  has  power,  indeed  it  is  his  duty,  to  rent  the  trust  prop- 
erty,1 and  he  may  make  an  ordinary  lease  without  any  special 
power,  and  in  such  case  the  lessee  will  not  be  in  any  danger  from 
the  equitable  title.  If,  however,  an  improvement  lease  or  a  lease 
for  a  long  term  of  years  is  proposed,  the  interest  of  the  lessee 
may  conflict  with  that  of  the  cestui  que  trust,  and  some  special 
authority  may  be  necessary.  This  case  of  a  lease  has  been  al- 

(i)  See  remarks  of  Ludlow,  J.,  in  Sharp's  Pet,  6  Phila.  153  (1866), 
s.  c.  23  L.  I.  412. 


§§  131,  i32>  J33       JURISDICTION  OF  EQUITY.  in 

ready  discussed,2  and  our  attention  in  the  rest  of  this  chapter  will 
therefore  be  confined  to  the  case  of  some  form  of  transfer  of 
the  legal  title. 

Jurisdiction  of  Equity  Independently  of  the  Act. 

§  131.  The  chancellor  had  ample  power,  however,  to  author- 
ize a  sale  by  a  trustee,  and  would  protect  the  purchaser,  if  nec- 
essary, by  an  injunction  preventing  the  cestui  que  trust  from 
proceeding  against  the  land.  This  jurisdiction  was  frequently 
exercised  in  England.  The  limited  nature  of  the  jurisdiction  of 
courts  of  equity  in  Pennsylvania  precluded3  a  general  resort  to 
this  remedy,4  although  cases  of  trusts  for  charity  are  to  be  found 
in  the  books  where  this  jurisdiction  was  in  point  of  fact  exercised, 
although  not  so  understood  by  the  court.5 

Act  of  1851. 

§  132.  By  Act  of  April  3,  1851,"  the  Orphans'  Court  have 
power  to  authorize  a  sale  of  real  estate  within  their  respective 
counties,  upon  application  of  the  trustee,  where  lands  are  held 
in  trust  under  a  will  for  any  person  or  corporation,  and  it  is  to 
the  interest  of  the  cestui  que  trust,  the  trustee  to  make  the  sale. 
No  case  has  been  found  of  a  proceeding  by  a  trustee  under  this 
act.  It  confers  jurisdiction  only  on  the  Orphans'  Court,  and  the 
Price  Act  was  passed  so  soon  after  it  that  it  has  been  generally 
overlooked. 

Jurisdiction  of  the  Court  now  Limited  by  the  Act. 

§  133.  The  jurisdiction  of  the  court  to  authorize  a  sale,  etc., 
is  now  probably  limited  by  the  provisions  of  the  act,  and  the 
courts  have  no  further  power  to  authorize  a  sale  under  their 

(2)  See  §  48,  ante. 

(3)  Mr.  Price,  The  Act  for  the  Sale  of  Real  Estate,  p.  9,  says  " and 

generally  a  trust  fixed  upon  the  real  estate  without  an  express  power  of  sale 
was  considered  to  make  the  land  inalienable  until  the  trust  expired." 

(4)  For  a  further  discussion  of  this  subject,  see  Foulke,  Rule  Against 
Perpetuities  in  Penna.,  etc.,  (1909)  §  758. 

(5)  See  Foulke,  Rule  Against  Perpetuities  in  Penna.,  etc.,  (1909),  §  758. 
Griffiths  v.  Cope,  17  Pa.  96   (1851)  ;    Barr  v.  Weld,  24  Pa.  84   (1854)  ; 
Brendle  v.  Congregation,  33  Pa.  415  (1859)  ;   Seebold  v.  Shitler,  34  Pa.  133 
(1859). 

(6)  P.  I,.  305- 


ii2  TRUSTS.  §  134 

inherent  equity  jurisdiction.8  This  proposition  is  illustrated  by 
the  case  of  Seif  v.  Krebs,9  in  which  case  the  testator  gave  certain 
property  in  trust  for  a  hospital  without  giving  the  trustees  power 
of  sale.  The  trustees  undertook  to  sell,  and  in  a  case  stated  be- 
tween them  and  the  purchaser  as  to  the  marketability  of  the  title, 
it  was  decided  that  the  title  was  not  marketable,  as  they  had  no 
power  to  convey  and  that  they  must  proceed  under  the  Act  of 
i853-10 

Provisions  of  the  Act.    Nature  of  the  Cestui  due  Trust  Immaterial. 

§  134.  The  various  clauses  of  the  act  describing  the  cases  of 
a  trust  where  the  court  may  authorize  the  disposition  specified, 
when  taken  together  embrace  every  instance  of  a  trust  of  real 
estate,  and  make  it  clear  that  so  far  the  jurisdiction  of  the  court 
is  concerned,  the  character  of  the  cestui  que  trust  is  immaterial. 
We  may  therefore  simplify  matters  by  saying  that  in  every  case 
of  a  trust  of  real  estate,  the  nature  of  the  cestui  que  trust  being 
immaterial,  the  court  may,  in  a  proper  case,  authorize  the  dis- 
position specified  in  the  act.11  These  clauses  relating  to  trusts 

(8)  See   Foulke,    Rule   Against    Perpetuities,    etc.,   in    Penna.,    (1909) 
p.  465- 

(9)  239  Pa.  423  (1913). 

(10)  Part  of  the  argument  in  this  case  turned  on  the  question  of  con- 
struction, whether  there  was  a  power  of  sale  in  the  will. 

(u)  The  various  clauses  of  the  act  and  its  supplements  are  as  fol- 
lows :  Sec.  2.  Where  real  estate  shall  be  held  for  minors,  lunatics,  habit- 
ual drunkards  so  duly  found  by  inquisition;  for  the  sole  and  separate 
use  of  married  women;  for  religious,  beneficial  or  charitable  societies 
or  associations,  incorporated  or  unincorporated;  for  or  by  any  other  cor- 
poration; by  trustees  for  any  public  or  private  use  or  trust;  generally 
in  all  cases  where  estates  have  been  or  shall  be  devised  or  limited  in 
trust  for  special  or  limited  purposes. 

Sec.  7.  Trustees,  etc.,  may  make  and  take  conveyances  by  deed  ac- 
knowledged in  court  without  public  sale  in  order  to  square  and  adjust 
lines  between  adjoining  owners;  may  make  and  take  conveyances  to  per- 
fect the  partition  of  real  estate  held  in  joint  tenancy,  coparcenary  or  in 
common  with  others;  to  purchase  other  real  estate  when  needful  (ad- 
joining) to  that  already  owned  by  any  such  party  or  useful  to  the  busi- 
ness thereupon  carried  on,  or  when  necessary  to  protect  any  security  or 
rent  held  on  property  exposed  to  judicial  sale. 

By  the  Act  of  April  18,  1864,  P.  L.  462,  Sec.  I.  Trustees,  etc.,  may 
make  and  take  or  join  with  owners  of  other  undivided  interests  in  making 
and  taking  conveyances  by  deed  acknowledged  in  court  and  without  a 
public  sale  in  order  to  change  in  part  or  in  whole  the  route  and  location 


§§  J35>  l$6       VESTED  EQUITABLE  REMAINDERS.  113 

have,  except  in  the  case  of  a  trust  for  a  charity,  given  very  little 
difficulty,  the  case  to  which  they  apply  being  so  clear.  Very  few 
cases,  therefore,  have  arisen  for  decision.12  The  practical  effect 
of  the  proceeding  under  the  act  is  to  cut  out  the  claim  of  the 
cestui  que  trust  against  the  land.  Without  the  proceedings,  he 
would  have  an  election  to  follow  the  land  or  the  proceeds. 

Where  Trustee  has  Power  which  cannot  be  Exercised. 

§  135.  These  clauses  of  the  act  must  furthermore  be  read  in 
connection  with  those  relating  to  powers,13  under  which  a  trustee 
with  a  power  of  sale  may  proceed  under  the  act,  notwithstanding 
the  existence  of  certain  circumstances  specified.14  Where  there 
is  no  power  of  sale,  the  trustee  will  proceed  under  the  clauses 
we  have  just  referred  to.15 

Vested  Equitable  Remainders. 

§  136.  It  frequently  happens  that  under  the  limitations  of 
the  instrument  creating  the  trust,  the  equitable  remainders  after 
the  life  estate  are  vested.  The  question  then  arises  whether  the 
court  has  jurisdiction  to  authorize  a  disposition  of  the  title  by 
the  trustee  against  the  consent  of  these  equitable  remaindermen.17 
Where  the  remainders  are  purely  equitable,  the  courts  will  have 
power  to  make  a  decree  nevertheless.  The  right  of  the  cestui 
que  trust  is  in  personam  ad  rem,17a  and  it  has  never  been  sug- 
gested that  the  right  in  rem  in  such  case  may  not  be  divested 
from  the  res  and  transferred  to  the  purchase  money  without  the 
consent  of  the  cestui  que  trust. 

Where,  however,  under  the  limitations  the  ultimate  remainders 

of  any  right  of  way  or  passage  existing  over  and  upon  adjoining  or  other 
lands.  To  be  in  the  discretion  of  the  court  whether  to  require  security 
in  such  case. 

(12)  A  few  cases  of  sales  of  a  trust  estate  are  as  follows:    Rhoades's 
Est,  4  W.  N.  C.  527  (1877)  5   Owens'  Pet,  3  D.  R.  328  (1894)  ;    Brooke's 
Est,  214  Pa.  46  (1906),  s.  c.  15  D.  R.  137. 

(13)  See  §  145,  post. 

(14)  See  §  147,  post. 

(15)  See  n.  n  §  134  ante. 

(17)  We  have  already  discussed  the  case  of  vested  legal  remainders, 
and  pointed  out  that  no  disposition  of  the  title  can  be  authorized  against 
their  consent.  See  §  12  ante. 

(173)  That  is,  a  right  against  the  trust  res  and  against  the  trustee 
personally. 


ii4  TRUSTS.  §  137 

are  legal  and  vested,  as  where  the  statute  of  uses  applies,  the 
case  is  different  and  there  is  grave  doubt  whether  the  courts  would 
have  power  to  make  a  decree  disposing  of  the  legal  title  against 
the  objection  of  the  remaindermen.19 

The  Petition. 

§  137.  The  petition  may  be  made  by  the  trustee  or  by  the 
cestui  que  trust.20  The  better  practice,  where  the  parties  are  in 
harmony,  is  for  the  trustee  to  proceed,  in  which  case  notice  must 
be  given  to  the  cestui  que  trust.  If  the  trustee  refuses  or  neg- 
lects to  act,  the  cestui  que  trust  may  take  the  matter  in  his  own 
hands,  sell,  mortgage  or  lease  the  property  subject  to  the  approval 
of  the  court,  and  then  present  his  petition  for  a  decree  confirming 
the  sale,  etc.  If  the  court  confirms,  it  will  probably  direct  the 
trustee  to  carry  out  the  terms  of  the  contract.21 

In  Dorrance's  Est.,22  there  was  an  estate  devised  in  trust  to 
A.  for  life,  with  remainders  over.  Upon  petition  of  a  life  cestui 
que  trust  for  an  order  directing  the  trustee  to  make  a  mortgage 
of  part  of  the  trust  estate  to  pay  for  past  improvements  made 
by  the  life  tenant  who  had  an  option  under  the  will  to  use  and 
occupy  the  home  farm,  which  option  the  life  tenant  had  exercised, 
the  petition  was  granted  directing  the  trustee  to  make  the  mort- 
gage. Not  clear  whether  the  mortgage  was  of  the  part  occupied 
by  the  life  tenant  or  of  the  other  part  of  the  trust  estate.  The 
life  tenant  cestui  que  trust  had  made  the  expenditures  without 
the  approval  of  the  court  or  the  consent  of  the  trustee.23 

(19)  See  §  12,  ante,  as  to  vested  interests.  See  §  138,  post,  as  to  consent 
of  the  cestui  que  trust. 

,(20)  For  instance  of  petitions  by  cestui  que  trust,  see  Sharp's  Pet.,  6 
Phila.  153  (1866),  s.  c.  23  L.  I.  412;  Dorrance's  Est.,  9  York  69  (1895). 
The  language  of  the  court  in  McClurg"s  Est.,  22  Pitts.  L.  J.  133  (1875), 
that  the  cestui  que  trust  may  not  petition,  may  be  disregarded  and  confined 
to  the  case  before  them,  in  which  there  had  been  no  trustee  appointed. 
The  cestui  que  trust  should  show  reason  for  the  non-petitioning  of  the 
trustee. 

(21)  In  Goddard's  Est.,  198  Pa.  454  (1900),  aff.  9  D.  R.  703  (1900),  it 
did  not  appear  who  made  the  petition,  probably  by  the  trustee. 

(22)  9  York  69  (1895). 

(23)  Confer,  Dorrance's  Est.,  13  D.  R.  664  (1904),  where  the  question 
arose  as  to  the  right  of  the  cestui  que  trust  to  compensation  out  of  the 
fund. 


§  138   NOTICE;  TO  AND  CONSENT  OF  THE  CESTUI  QUE  TRUST.    115 

Notice  to  and  Consent  of  Cestui  due  Trust. 

§  138.  Where  the  proceedings  are  by  the  trustee,  notice  must 
be  given  to  the  cestui  que  trust,  or  if  more  than  one,  to  all  of 
them.  If  the  cestui  que  trust  is  a  lunatic,  notice  must  be  given 
to  the  committee  or  else  no  title  will  pass  under  the  proceed- 
ings.2* If  the  cestui  que  trust  is  under  disability,  provision  must 
be  made  by  the  appointment  of  a  guardian  or  committee.  Where 
the  cestui  que  trust  is  a  married  woman,  it  is  probable  that  her 
husband  must  be  notified,  and  if  she  joins  in  the  petition,  he 
should  sign  also.25 

If  the  proceeding  is  by  the  cestui  que  trust,  it  is  clear,  although 
there  is  no  authority  for  the  statement,  that  notice  must  be  given 
to  the  trustee,  and  if  the  court  grants  the  petition,  the  trustee 
will  ordinarily  be  directed  to  proceed  and  make  the  sale.  The 
consent  of  the  cestui  que  trust  is  almost  indispensable.26 

A  distinction  may  be  drawn  as  to  the  necessity  of  consent  be- 
tween a  life  tenant  and  one  having  a  contingent  interest  in  re- 
mainder. Less  regard  is  generally  paid  to  the  contingent  re- 
mainders in  such  case,  and  the  consent  of  the  life  cestui  que 
trust  is  usually  regarded  as  sufficient. 

In  Leedom  v.  Lombaert,26a  there  was  a  mortgage  by  a  testa- 
mentary trustee  under  order  of  the  Orphans'  Court  without  notice 
to  the  remaindermen  cestui  que  trust  who  were  minors  and  with- 
out guardians.  The  mortgage  was  made  to  raise  money  to  im- 
prove the  real  estate.  In  proceedings  under  the  mortgage  it  was 
held  that  the  trustee  could  not  set  up  in  defence  the  lack  of  notice 
to  the  remaindermen.  The  court  had  jurisdiction  of  the  trust, 
the  trustees  and  the  subject  matter,  and  the  decree  could  not  be 

(24)  Hirst's  Est.,  147  Pa.  319  (1892). 

(25)  See  §  19,  ante,  as  to  notice. 

(26)  Hollins's  Est.,  16  D.  R.  441  (1907).    See,  however,  Goddard's  Est., 
198  Pa.  454  (1901),  aff.  9  D.  R.  703   (1900),  where  the  objection  of  a 
cestui  que  trust  claiming  to  have  an  appointment  set  aside  was  disre- 
garded as  premature.    The  courts  will  very  rarely  decree  a  sale  where 
the  cestui  que  trust  refuses  to  consent.    A  case  may  arise,  however,  where 
one  or  several,  by  a  refusal,  prevent  a  proper  disposition  of  the  legal 
title.     The  only  difficulty  as  to  consent  which  arises  in  such  a  case  is 
where  the  equitable  remainders  are  vested.     See  §  99,  ante.    As  to  when 
notice  will  be  presumed,  see  Smith  v.  Schwarz,  209  Pa.  79  (1904);    Mc- 
Guirk  v.  Friel,  9  Del.  Co.  22  (1906). 

(26a)  80  Pa.  381  (1876). 


ii6  TRUSTS.  §§  139,140 

impeached  collaterally.  Furthermore,  the  mortgagor  alone  made 
defence.  The  cestuis  que  trust  who  received  no  notice  did  not  de- 
fend and  it  did  not  appear  that  they  were  not  fully  secured  by  the 
security  entered  by  the  trustee. 

Sole  and  Separate  Use. 

§  139.  There  was  no  occasion  to  insert  any  special  provision 
as  to  the  sole  and  separate  use  because  the  peculiarity  of  that 
case  of  a  trust  lay  in  the  nature  of  the  cestui  que  trust  and  the 
equitable  title,  and  the  incapacity  of  the  cestui  que  trust  concern- 
ing the  same.  Mr.  Price  says27  that  before  the  act  the  title  of 
married  women,  limited  to  her  sole  and  separate  use,  could  not 
be  conveyed  unless  there  was  express  power  to  that  effect  from 
which  it  might  appear  that  this  section  was  designed  to  enable 
the  cestui  que  trust  to  convey  her  equitable  interest.  At  that 
time  the  distinction  between  the  legal  title  and  equitable  interest 
was  imperfectly  apprehended.  There  is  no  occasion  to  sup- 
pose that  the  act  relates  to  the  equitable  interest,  to  the  convey- 
ance of  which  the  cestui  que  trust  is  amply  competent  except  when 
expressly  restrained  by  a  valid  clause  in  the  instrument  creating 
the  trust,  as  in  the  case  of  a  sole  and  separate  use.28 

Sale  of  Equitable  Title  of  Cestui  Que  Trust. 

§  140.  There  is  no  basis  for  the  notion  that  the  court  has 
jurisdiction  to  authorize  a  sale,  etc.,  of  the  equitable  title  of  the 
cestui  que  trust,  and  no  case  has  been  reported  of  any  such  de- 
cree. In  the  case  of  a  sole  and  separate  use  and  spendthrift 
trust,  the  cestui  que  trust  is  incapacitated  from  making  a  convey- 
ance under  the  terms  of  the  instrument  creating  the  trust.  The 
act,  however,  contains  no  clause  authorizing  the  interposition  of 

(27)  Price,  the  Act  for  the  Sale  of  Real  Estate,  p.  9  (1874). 

(28)  By  Act  of  May  11,  1874,  P.  L.  131,  Sec.  i,  where  trustees  under 
deed  of  a  fee  simple  sole  and  separate  use,  without  restraint  on  aliena- 
tion prior  to  Jan.   i,  1870,  upon  request  or  direction  of  the  cestui  que 
trust,  sold  in  good  faith  for  a  valuable  and  full  consideration,  which  was 
paid  to  the  cestui  que  trust  and  without  leave  of  court,  and  the  pur- 
chaser entered  into  possession  and  erected  valuable  improvements,  and 
sold  to  any  other  persons,  the  courts  may,  upon  petition  by  any  person 
interested,  approve  the  sale  with  like  effect  as  if   sold  under  previous 
authority  of  the  court  and  direct  the  proper  person  to  execute  a  deed 
with  or  without  security,  as  the  court  may  direct,  notice  to  be  given  to  all 
parties  personally  or  by  publication,  as  the  court  may  direct. 


§§  141, 142  SALE  BY  TRUSTEE  TO  CESTUI  QUE  TRUST.  117 

the  court  in  such  a  case.  There  is  no  law  conferring  an  im- 
munity from  alienation  because  the  disability  is  imposed  by  the 
donor  in  creating  the  trust  and  is  therefore  not  a  law.29  This  is 
true  also  of  a  sole  and  separate  use  because  the  incapacity  of 
the  cestui  que  trust  is  the  result  merely  of  a  rule  of  construc- 
tion.30 The  act  was  passed  to  promote  facility  in  dealing  with 
real  estate,  and  since  the  trustee  is  fully  empowered  to  act,  there 
is  no  necessity,  from  this  point  of  view,  for  resorting  to  the  act 
in  order  to  authorize  the  cestui  que  trust  to  dispose  of  his  equi- 
table interest,  and  in  all  cases  where  there  is  no  restraint,  he  has 
full  power  to  make  such  an  assignment. 

Sale  by  Trustee  to  Cestui  due  Trust. 

§  141.  There  is  no  reason  whatever  why  a  trustee  should  not 
be  authorized  to  convey,  mortgage  or  lease  to  the  cestui  que 
trust.  Of  course  no  such  deal  should  be  permitted  to  disturb 
the  trust  where  there  are  other  parties  in  interest.  A  petition 
for  a  sale  by  the  trustee  to  a  cestui  que  trust  was  presented  in 
Sharp's  Pet.,31  but  the  court  declined  to  grant  the  prayer  as  it 
was  not  considered,  upon  the  evidence,  advisable.  The  case  arose 
on  exceptions  to  master's  report,  master  having  reported  in 
favor  of  this  sale.  The  exceptions  were  sustained.  The  remarks 
of  Ludlow,  J.,  that  the  objection  to  the  granting  of  the  petition 
was  that  if  the  petition  was  granted,  the  cestui  que  trust  would 
then  become  the  owner  of  the  estate  devised  to  him  in  trust,  and 
could  convey  it  to  whomsoever  he  saw  fit,  overlook  the  fact  that 
the  trust  would  be  transferred  to  the  proceeds  of  the  sale,  and 
it  was  utterly  immaterial,  so  far  as  that  was  concerned,  if  the 
price  was  adequate,  whether  the  property  was  retained  or  sold. 

Proceeds  of  the  Sale. 

§  142.  The  proceeds  of  the  sale  are  to  be  held  upon  the  same 
trusts,  and  subject  to  the  same  limitations,  as  the  land  which  was 
sold,  and  are  not  to  be  paid  over  to  the  cestui  que  trust  unless 
he  is  the  sole  party  in  interest  and  the  limitations  of  the  trust 
permit.  Where  a  testator  devises  a  farm  to  a  trustee  for  the 
life  of  her  nephew,  with  remainder  to  his  children,  and  directs 

(29)  See  §  38,  ante,  on  immunity  from  alienation. 

(30)  See  Foulke,  Rule  Against  Perpetuities,  etc.,  in  Pennsylvania,  (1909) 
Chap.  24. 

(31)  6  Phila.  153  (1866),  23  L.  I.  412. 


ii8  TRUSTS.  §  143 

that  the  nephew  shall  have  the  right  to  occupy  the  farm  and 
buildings  "so  long  as  he  should  continue  to  cultivate  the  same 
according  to  the  rules  of  good  husbandry,  and  keep  the  place  in 
good  order  and  repair,"  and  the  land  is  subsequently  sold  under 
the  Price  Act,  the  children  of  the  nephew  are  not  entitled  to  have 
the  proceeds  of  the  sale  distributed  directly  to  themselves.  In 
such  a  case  the  trustee  must  invest  the  proceeds  and  pay  the 
income  to  the  life  tenant.33 

Trust  for  a  Charity. 

§  143.  It  seems  necessary,  although  the  act  provides,  as  we 
have  seen,  in  effect  for  every  case  of  a  trust,  irrespective  of  the 
nature  of  the  cestui  que  trust,  to  notice  separately  the  case  of  a 
trust  for  a  charity.  The  peculiar  nature  of  a  charitable  trust  has 
caused  no  small  confusion  in  every  branch  of  the  law  in  which 
it  appears,  and  it  has  frequently  been  supposed  that  a  charitable 
cestui  que  trust  called  for  the  application  of  some  special  rule 
of  law  when  it  appears  on  careful  reflection  that  no  such  neces- 
sity exists.  The  subject  under  consideration  has  been  involved 
in  some  confusion.  We  may  first  notice  that  the  trust  may  be 
for  (i)  a  charitable  corporation,  (2)  a  definite  or  indefinite 
charitable  object,  (3)  what  are  sometimes  classed  under  charit- 
able objects,  to- wit,  indefinite  non-charitable  objects.  The  act, 
however,  makes  special  provision  only  for  a  sale,  etc.,  in  the 
case  of  a  trustee  for  religious,  beneficial  or  charitable  associa- 
tions incorporated  or  unincorporated,  and  all  other  cases  of  a 
charitable  trust  are  left  unprovided  for  unless  they  are  included 
which  they  must  be  in  the  case  of  trustees  of  any  public  or  pri- 
vate use  or  trust.  The  nature  of  the  cestui  que  trust  has  no 
bearing  on  the  jurisdiction  of  the  court  to  order  a  sale,  but  may 
have  a  very  important  bearing  in  fact  on  the  question  of  the  ex- 
pediency of  the  sale. 

In  Mercer  Home,  Fisher's  Appeal,84  there  was  a  devise  of 
certain  land  in  trust  for  a  charitable  corporation  to  be  formed. 
The  corporation  was  formed,  and  the  executors  of  the  testator 
conveyed  the  land  to  the  corporation.  The  corporation  petitioned 

(33)  Penn-Gaskell's  Est,  (No.  2)  208  Pa.  346  (1904) ;   Goddard's  Est., 
198  Pa.  454  (1900),  aff.  9  D.  R.  703  (1901). 

(34)  162  Pa.  232  (1894).    See  §  34,  ante. 


§  143  TRUST  FOR  A  CHARITY.  119 

for  leave  to  sell  part  of  the  land  at  private  sale  under  the  Price 
Act,  and  the  petition  was  granted.35 

Where,  however,  the  title  is  in  trustees  for  a  church  or  charity, 
the  case  is  the  same  as  any  other  trust  and  proceedings  must  be 
instituted  under  the  act  for  the  sale,  etc.,  unless  there  is  express 
power  thereto  in  the  instrument  creating  the  trust. 

Where  the  trustees  of  a  church  held  land  in  trust  for  certain 
charitable  purposes,  and  a  conveyance  was  made  without  pre- 
vious resort  to  the  court  under  the  act,  it  was  held  it  would  not 
convey  a  marketable  title.36 

In  Burton's  Appeal,37  the  trustees  for  a  church  were  authorized 
to  sell  land  held  in  trust  for  the  church,38  and  it  was  held  that 
the  discretion  is  in  the  court,  and  the  vote  of  the  congregation 
is  not  essential  or  binding  but  may  be  considered  as  a  fact  bear- 
ing on  the  expediency  of  the  sale. 

In  Sellers  Church's  Pet.,39  land  conveyed  to  trustees  for  the 
use  of  the  members  of  a  religious  denomination  as  a  place  of 
worship  forever,  was  decreed  to  be  sold  free  from  the  trust,  the 
purchase  money  being  invested  in  other  property  held  for  the 
same  uses. 

(35)  For  instances  of  the  exercise  of  this  jurisdiction,  see:    Stallman's 
App.,  38  Pa.  200  (1861).    Sale  of  lot  devised  in  trust  for  use  as  a  burial 
lot   forever,   Funck's   Est,    16   Super.    C.   434    (1901).     See   vague   case 
of  Church  v.  Gray,  198  Pa.  321   (1901)  ;   Church's  Pet.,  I  Lack.  L.  N.  89 
(1887). 

(36)  Nauman  v.  Weidman,  182  Pa.  263  (1897),  s.  c.  40  W.  N.  C.  509,  37 
Atl.  Rep.  863,  14  Lane.  L.  R.  305. 

(37)  57  Pa.  213  (1868). 

(38)  As  to  the  discussion  in  this  case  of  immunity   from  alienation, 
see  §  34,  ante. 

(39)  139  Pa.  61   (1890). 


120  POWERS.  §§  145, 146 


CHAPTER  7. 

Powers. 

Preliminary  discussion.    Division  of  powers §  145 

Provisions  of  the  act   §  146 

Powers  of  sale 

Provisions  of  the  act  as  to  §  147 

Time  not  arrived  for  exercise §  148 

Unreasonably  withhold  consent   §  149 

Powers  of  appointment  §  150 

Division  of  Powers. 

§  145.  Powers  are  of  several  kinds,  and  for  the  purposes  of 
this  discussion  may  be  divided  into  three  classes : 

(1)  Powers  vested  in  a  fiduciary,  as  a  trustee  or  executor, 
which  includes  powers  ancillary  to  a  continuing  trust,  and  a  mere 
power  in  trust  the  distinction  between  the  two  not  being  material 
for  the  purposes  of  this  discussion. 

(2)  Powers  of  appointment. 

(3)  Powers  in  a  legal  owner  to  do  something  with  the  prop- 
erty not  incident  to  his  estate,  as  power  in  a  life  tenant  to  sell 
in  fee. 

Provisions  of  the  Act  as  to  Powers. 

§  146.  The  act  makes  no  separate  provision  for  these  kinds 
of  powers  but  simply  speaks  of  powers  of  sale,  and  in  one  in- 
stance powers  of  appointment.1 

(i)  The  words  of  the  act  are  as  follows:  Such  sale,  etc..,  may  be  de- 
creed whenever  real  estate  shall  be  held.  .  .  .  "By  trustees  for  any  .  .  . 
and  although  there  may  exist  a  power  of  sale  but  the  time  may  not  have 
arrived  for  its  exercise  or  any  preliminary  act  may  not  have  been  done 
to  bring  it  into  exercise  or  the  time  limited  for  its  exercise  may  have 
expired  or  any  one  or  more  persons  required  to  consent  or  join  in  its 
execution  may  have  become  non  compos  mentis  or  have  removed  out  of 
the  state  or  died  or  should  refuse  to  act  or  unreasonably  withhold  con- 
sent, also  when  there  has  been  or  shall  be  a  defective  appointment  in  any 
deed  or  last  will  and  testament  and  the  necessary  power  is  not  given  to 
the  executor,  devisee  or  appointee  to  make  sale  and  conveyance  of  real 
estate."  The  clause  providing  that  every  power  to  sell  in  fee  simple  real 
estate  created  by  deed  or  will  shall  be  taken  to  confer  an  authority  to  re- 
serve, sell  and  convey  ground  rents,  is  discussed  in  §  51,  ante,  referring 
to  conveyances  on  ground  rent. 


§  147  POWERS  OF  SALE.  121 

Since  the  language  follows  and  relates  to  the  previous  clause 
describing  trusts,  it  is  clear  that  the  jurisdiction  conferred  by  the 
act  is  to  be  limited  to  the  case  of  a  trust,  and,  therefore,  a  power 
of  sale  purely  executorial  in  its  nature,  can  derive  no  assistance 
from  the  court  under  this  act.2 

The  act  provides  that  such  sale,  etc.,  may  be  decreed  when 
a  power  of  sale  has  been  reserved  and  the  power  cannot  be  exer- 
cised for  certain  reasons  enumerated  in  the  act.  This  language 
may  apply  to  a  power  in  a  trustee  or  a  power  annexed  to  a  legal 
estate,  as  a  power  in  a  life  tenant.  The  word  "reserved"  of 
course,  plainly  implies  that  the  power  has  been  held  out  by  some- 
thing granted,  and  is  therefore  properly  applicable  only  to  a 
power  reserved  to  a  donor  or  grantor,  and  would  not  cover  a 
power  conferred  upon  a  trustee  or  a  grantee  of  a  legal  estate  or 
devisee  under  a  will.  The  language  of  the  act  has  never  been 
so  narrowly  construed  as  this,  and  it  seems  to  be  generally  as- 
sumed that  these  words  contemplate  all  cases  of  powers  granted 
to  trustees  under  deeds  or  wills  or  to  tenants  of  legal  estates. 
The  case  where  there  is  no  power  of  sale  at  all,  curiously  enough, 
is  not  specifically  mentioned  in  the  act,  and  is  only  inferred  from 
those  clauses  conferring  power  to  direct  a  sale  in  the  case  of 
trusts.24 

Provisions  of  the  Act  as  to  Power  of  Sale. 

§  147.  The  particular  instances  in  which  a  power  of  sale  can- 
not be  exercised  and  such  sale,  etc.,  may  be  decreed,  are  enumer- 
ated in  tabular  form  in  note.3  All  these  cases  are  perfectly  plain 
and  no  decision  has  been  made  as  to  any  of  them  except  the  case 

(2)  The  case  where  there  is  a  power  of  sale,  and  the  question  is  whether 
the  power  shall   be  exercised  involves  a  different  question,   for  a  case 
of  which  see  Rogers's  Est,  185  Pa.  428  (1898). 

(2a)  See  §   135  ante. 

(3)  Power  of  sale 

Time  not  arrived  for  its  exercise 
Time  limited  for  its  exercise  has  expired 
Preliminary  act  not  done  to  bring  it  into  exercise 
Persons  required  to  consent  or  join  in  its  execution  are 

Non  compos  mentis 

Removed  out  of  the  state 

Died 

Refused  to  act 

Unreasonably  withhold  consent. 
9 


122  POWERS  o*  SAIX  §§  148, 149 

where  the  parties  required  to  consent  or  to  join  in  the  execution 
of  the  power  unreasonably  withhold  consent. 

Time  not  Arrived  for  Execution. 

§  148.  The  act  also  confers  jurisdiction  to  authorize  the  sale, 
etc.,  where  there  is  a  power  of  sale  but  the  time  fixed  for  its  ex- 
ecution has  not  arrived.  But  two  cases  have  been  found  on  the 
point,  both  in  the  lower  court,  and  neither  of  them  clear.  There 
seems  to  be  some  doubt  as  to  the  jurisdiction  conferred  by  this 
clause.  If,  as  sometimes  happens,  there  is  any  person  in  interest 
who  has  a  vested  right  in  the  execution  of  the  power  at  the  time 
specified,  then  it  seems  that  he  can  compel  the  postponing  of  the 
execution  of  the  power  until  that  time.  In  such  a  case  the  court, 
it  seems,  has  no  jurisdiction  to  direct  the  sale  at  a  prior  time 
against  his  consent.4 

Unreasonably  Withhold  Consent. 

§  149.  The  phrase  "unreasonably  withhold  consent"  appears 
under  that  clause  of  the  act  relating  to  the  various  cases  of 
powers  of  sale.  It  seems  to  be  a  proper  construction  that  it  only 
applies  to  the  case  where  a  power  of  sale  is  granted  and  the  con- 
sent of  someone  is  required  to  the  exercise  of  the  power,  and 
that  person  unreasonably  withholds  consent.5 

(4)  Price  on  The  Act  for  the  Sale  of  Real  Estate,  (1874)  pp.  92,  93. 
Myer's  Est,  i  D.  R.  140  (1892),  s.  c.  11  Pa.  C.  C.  194,  30  W.  N.  C.  175. 
In  this  case  the  sale  was  committed  to  the   discretion  of  the  trustees 
upon  the  death  of  certain  persons.     The  petition  was  presented  during 
their  life,  and  the  court  said  that  it  had  no  power  to  order  a  sale.     In 
Schaffer's  Est,  i  Woodw    387   (1867),  a  petition  was  presented  for  an 
order  of  sale  of  a  decedent's  real  estate  in  anticipation  of  the  period  ap- 
pointed by  the  testator  for  the  sale  of  the  same.    The  petition  was  referred 
to  an  auditor,  and  as  all  parties  had  not  joined  in  the  court  said  that  an 
actual  necessity  for  the  sale  must  be  shown  in  such  a  case. 

(5)  When  the  testator  requires  that  the  sale  be  made  with  the  con- 
sent of  one  or  more  persons,  the  validity  of  the  exercise  of  the  power 
is  conditioned  on  that  consent,  which  must  be  personal  and  cannot  be 
given  by  anyone  else.    It  seems  that  the  statute  of  fraud  applies  and  the 
consent  must  be  in  writing,  Dictum,  Kennedy,  J.,  in  Kling  v.  Hummer,  2 
P.  &  W.  349  at  354  (1831),  and  that  the  consent  is  revocable  up  to  the 
time  of  the  delivery  of  the  deed  unless  founded  on  a  valuable  considera- 
tion.    Accordingly  the  assent  was  permitted  to  be  withdrawn  in  Kling 
v.  Hummer,  2  P.  &  W.  349  (1831).     Consequently,  if  the  person  desig- 
nated dies,  the  power  cannot  be  exercised;    if  given  to  two  or  more  it 


§  149  POWERS  otf  SALE.  123 

The  phrase  "unreasonably  withhold  consent"  applies  only  to 
the  cestui  que  trust  of  a  trust  estate  as  pointed  out  by  Ashman, 
J.,  in  Kerner's  Estate.0  So  also  it  was  said  by  Penrose,  J.,  in 
Hollins's  Est.,7  that  it  only  applied  to  inseparable  interests 
as  cestui  que  trusts,  and  therefore  the  withholding  of  con- 
sent by  a  tenant  in  common  who  holds  independently  and  can 
force  partition,  is  immaterial.  The  position  of  the  clause  is  such 
that  it  clearly  relates  to  powers  and  not  to  any  other  case. 
The  word  "required"  seems  to  refer  to  some  previous  instru- 
ment imposing  the  requirement  and  hardly  expresses  the  joinder 
necessary  from  a  party  in  interest  under  operation  of  law  or 
a  tenant  in  common.  In  can  hardly  be  properly  said  that  a 
tenant  in  common  is  required  to  join  in  a  sale  of  the  common 
property.  The  clause  has  rarely  been  before  the  court  for  con- 
struction. 

Freeman's  Estate,8  simply  discusses  whether  on  the  facts  the 
withholding  of  consent  by  one-eighth  of  the  cestui  que  trust  to  a 
sale  by  a  trustee  was  unreasonable.  It  was  held  that  it  was  and 
sale  was  confirmed.9 

does  not  survive,  and  when  one  dies  without  the  consent  having  been 
given,  it  cannot  ever  thereafter  be  exercised,  Kling  v.  Hummer,  2  P.  & 
W.  349  (1831).  In  Hackett  v.  Milnor,  156  Pa.  i  (1893),  there  was  a  direc- 
tion to  an  executor  to  sell  with  the  consent  and  approval  of  three  daughters. 
One  daughter  died,  and  a  sale  approved  by  the  other  two  was  held  to  pass 
a  good  title.  In  this  case,  however,  under  the  limitations  of  the  will,  the 
two  surviving  daughters  were  practically  the  sole  and  absolute  owners  ot 
the  property,  and,  of  course,  could  not  be  deprived  of  their  right  to  make  a 
sale  or  consent  to  a  sale  because  of  the  death  of  their  sister.  It  is  possible 
in  this  case  to  construe  the  will  as  meaning  that  the  power  of  sale  was  to  be 
exercised  with  the  consent  of  the  three  daughters  and  the  survivor,  but  the 
court  did  not  place  the  decision  on  that  ground. 

(6)  13  D.  R.  311  (1904),  s.  c.  30  Pa.  C.  C.  175. 

(7)  16  D.  R.  441  at  443.    (1907.)    The  petition  was  presented  by  a  trus- 
tee holding  a  one-fourth  interest  in  trust,  and  the  cestui  que  trust  refused 
to  consent.    Penrose,  J.,  said  that  the  remedy  of  the  other  parties  was  by 
partition.    See  §  22,  ante. 

(8)  21  D.  R.  i   (1911). 

(9)  s.  c.  181  Pa.  405   (1897).     The  sweeping  language  of  Mitchell,  J., 
at  page  405,  was  pointed  out  and  criticised  by  Ashman,  J.,  in  Kerner's 
Est.,  13  D.  R.  311  (1904),  s.  c.  30  Pa.  C.  C.  175,  as  countenancing  unduly  the 
doctrine  that  a  sale  may  be  made  against  the  consent  of  one  having  a 
vested  interest. 


124  POWERS  OF  APPOINTMENT.  §  150 

In  Goddard's  Est.,10  a  petition  was  presented  for  an  order  to 
sell,  and  the  party  objecting  had  been  excluded  by  a  codicil  and 
would  only  have  an  interest  if  the  codicil  were  held  invalid.  He 
was  not,  therefore,  required  to  consent.  The  language  of  Pen- 
rose,  J.,  in  the  court  below,  in  placing  the  jurisdiction  on  the 
clause  of  the  Price  Act  providing  for  unreasonably  withholding 
consent,  seems  beside  the  mark. 

In  Spangler's  Est.,11  there  was  a  petition  by  the  executors  of 
a  will  for  leave  to  lease  with  option  to  purchase,  one  party  hold- 
ing one-ninth  interest  unreasonably  withholding  consent.  It  ap- 
peared that  there  was  a  power  of  sale  in  the  will  with  the  con- 
sent of  this  party,  inter  alia.  A  rule  to  show  cause  why  contract 
of  lease  should  not  be  made  apparently  on  the  one-ninth  owner 
was  made,  who  took  the  ground  that  the  will  authorized  and 
directed  a  sale  not  a  lease,  that  the  lease  would  not  be  to  the 
interest  and  advantage  of  the  estate.  The  court  refused  to  con- 
firm the  sale,  and  said  that  the  Act  of  1853  did  not  apply.  The 
clause  as  to  unreasonably  withholding  consent  being  inapplicable 
because  the  respondent  was  under  the  terms  of  the  will  to  con- 
sent to  a  sale,  and  therefore  could  not  be  required  to  consent  to 
a  lease. 

Powers  of  Appointment. 

§  150.  The  statute  confers  jurisdiction  in  cases  where  there 
is  a  defective  appointment  in  any  deed  or  will,  and  the  necessary 
power  is  not  given  the  executor  A  devisee  or  appointee  to  make 
sale  or  conveyance  of  real  estate.  It  is  difficult  to  see  what  the 
framers  of  the  statute  had  in  mind  in  inserting  this  proviso.  The 
appointee  or  devisee  may  take  an  estate  for  years,  a  life  estate 
or  fee.  In  the  last  case  he  has  power  to  convey  anyhow  unless 
there  is  a  modified  fee,  which  case  is  separately  provided  for.12 
So  also  the  case  of  a  life  estate  is  included  under  another  clause 
unless  there  are  vested  remainders,13  in  which  case  no  sale,  etc., 
may  be  authorized  unless  the  vested  remaindermen  are  under 
some  disability  or  voluntarily  join  in  the  sale,  in  which  case  the 
jurisdiction  is  conferred  in  another  clause  of  the  statute.14  If 


(10)  198  Pa.  454  (1901),  aff.  9  D.  R.  703  (1900). 

(11)  12  York  20  (1898). 


(12)  See  §  129,  ante. 

(13)  See  §  12,  ante. 

(14)  See  §  22,  ante. 


§  150  POWERS  OF  APPOINTMENT.  125 

the  appointment  is  to  an  executor,  he  may,  under  existing  legis- 
lation sell  whenever  it  is  necessary  to  do  so.\  We  may  conclude, 
therefore,  that  this  clause  is  superfluous  and  unnecessary.^  There 
is  no  reported  case  arising  under  the  clause,  and  it  is  doubtful  if 
it  has  ever  been  resorted  to  in  practice.15 

Mr.  Price16  seems  to  think  that  this  clause  confers  the  juris- 
diction usually  exercised  by  equity  to  remedy  defective  execu- 
tions of  a  power,  and  to  give  the  judicial  remedy,  etc.,  where  the 
executor,  devisee  or  appointee  has  not  the  power  to  cure  such 
defect.  It  seems  a  strained  construction  of  the  words  to  extend 
them  to  the  conferring  of  such  jurisdiction  as  this.  Upon  the 
whole,  the  matter  will  have  to  be  left  in  considerable  doubt  until 
the  clause  has  been  passed  on  by  the  Supreme  Court. 

(15)  See  §  24,  ante. 

(16)  Price  on  The  Act  for  the  Sale  of  Real  Estate,  (1874)  p.  94 


126      PERFORMANCE  OF  DECEDENT'S  CONTRACT.  §§  151, 152, 153 


CHAPTER  8. 

Specific  Performance  of  Decedent's  Contract. 

Provisions  of  the  act  §  151 

Provided  for  by  Act  of  1834  §  152 

Application  of  the  Price  Act  doubtful   §  153 

Provisions  of  the  Act. 

§  151.  The  court  may  also  exercise  the  jurisdiction  conferred 
"whenever  a  decedent  shall  have  contracted  by  parol  to  sell  real 
estate,  and  those  interested  do  not  think  it  expedient  to  plead  the 
statute  requiring  contracts  to  be  in  writing  to  enable  the  pur- 
chaser to  recover  the  real  estate  agreed  to  be  sold."  It  is  diffi- 
cult to  determine  the  exact  meaning  of  this  provision.  It  covers 
only  the  case  of  a  decedent  vendor  but  does  not  specify  whether 
the  proceedings  are  to  be  instituted  by  the  personal  representa- 
tives or  heirs  of  the  deceased  vendor  or  by  the  vendee. 

Case  Provided  for  by  Act  of  1834. 

§  152.  Either  case  was  provided  for  by  the  Act  of  February 
24,  I834,1  which  also  covers  the  case  of  an  oral  contract.2  The 
existing  legislation  seemed  to  fully  cover  the  point,  which  is  per- 
haps the  reason  why  so  few  cases  have  arisen  under  this  pro- 
vision. Under  the  Act  of  1853,  the  petition  must  be  presented 
in  the  county  where  the  lands  lie,  whereas,  under  the  Act  of  1834 
and  its  supplements,  the  petition  is  to  be  presented  in  the  court 
having  jurisdiction  of  the  account  of  the  executor  or  adminis- 
trator even  if  the  land  lies  in  another  county.3 

Application  of  the  Price  Act  Doubtful. 

§  153.  The  application  of  the  Price  Act  to  the  case  of  the 
parol  contract  of  a  decedent  is  very  doubtful.  It  is  not  easy  to 
see  how  the  words  of  the  act  are  capable  of  practical  application. 

(1)  Sees.  15,   1 6,  17,  18,  P.  Iy.  70,  as  re-enacted  by  the  Act  of  April 
28,  1899,  P.  L.  157,  for  a  discussion  of  which  see  58  Univ.  of  Pa.  Law 
Review,  p.  465.     For  a     recent  case  upon  this  act,  see  Gable  v.  White- 
side,  242  Pa.  188  (1913). 

(2)  McKee  v.  McKee,  14  Pa.  231  (1850). 

(3)  M'Farson's  App.,  n  Pa.  503  (1849). 


§  153  APPLICATION  of  PRICE  ACT  DOUBTFUL.  127 

Mr.  Price  says4  that  the  clause  enables  the  court  to  decree  spe- 
cific execution  of  the  parol  contract  where  the  parties  desire  it, 
notwithstanding  the  statute  of  frauds  requiring  contracts  for  the 
sale  of  real  estate  to  be  in  writing.  A  few  cases  have  arisen  on 
the  act  to  which  the  attention  of  the  learned  reader  will  now  be 
directed. 

In  the  case  of  Merrell  v.  Merrell,6  the  vendor  conveyed  the 
title  to  a  third  person,  the  vendee  being  in  possession  and  having 
made  payments  on  account.  The  third  person  died,  having  de- 
vised the  premises  to  B.  in  trust  for  C.,  a  minor.  The  vendor 
brought  ejectment,  and  it  was  properly  held  that  the  case  was 
not  within  the  Act  of  1834  nor  within  the  Act  of  April  18,  1853, 
and  therefore  the  plaintiff  was  entitled  to  bring  ejectment,  and 
the  contention  of  the  defendant  that  the  plaintiff's  remedy  was 
exclusively  in  the  Orphans'  Court  under  these  two  acts  could  not 
prevail.  It  was  argued  that  the  case  was  within  the  Price  Act 
because  the  devise  was  upon  trust  and  the  person  interested  was 
under  disability  to  convey  because  of  the  minor.  It  was  not  a 
proper  proceeding  for  the  Price  Act  because  the  action  was  eject- 
ment, and  it  was  a  mere  dictum  that  the  Orphans'  Court  had 
no  jurisdiction  because  the  proceeding  was  in  the  Common  Pleas.6 

In  Anders's  Estate,7  where  the  executors  petitioned  for  permis- 
sion to  convey  under  the  oral  contract ;  the  petition  was  defective 
and  was  refused.  The  court  said  that  it  was  doubtful  which  act 
the  petition  came  under.  The  petition  did  not  set  out  the  contract 
with  sufficient  particularity.  It  was  by  the  executors  but  the 
devisees  under  the  will  were  not  notified.8 

(4)  Price  on  The  Act  for  the  Sale  of  Real  Estate  ( 1874) ,  page  97. 

(5)  5  Pa.  C.  C.  531  (1888),  s.  c.  5  Kulp  125,  6  Lane.  L.  R.  17. 

(6)  See  remarks  of  Rice,  P.  J.,  in  this  case  on  this  clause  of  the  act, 
at  533,  that  the  case  of  a  parol  contract  of  a  decedent  was  not  within 
the  mischief  to  be  remedied  by  the  Price  Act. 

(7)  4W.  N.  C.  382  (1877). 

(8)  See  also  Lindsay's  Pet.,  2  Del.  Co.  197  (1878). 


128  PARTITION.  §§  154,155 


CHAPTER  9. 

Partition. 

Preliminary    §  154 

Provisions  of  the  act   §  155 

Jurisdiction  under  the  act  as  to  partition  proceedings   §  156 

Jurisdiction  under  the  act  as  to  amicable  partition 

Preliminary  discussion   §  157 

Wilson's  Estate   §158 

Hirsh's  Estate  §  159 

Thomas's  Estate  §  160 

Hunsworth's   Estate    §  161 

Conclusion  as  to  jurisdiction   §  162 

Security  in  case  of  partition  §  163 

Partition. 

Preliminary. 

§  154.  Partition  is  the  process  by  which  the  owners  of  undi- 
vided interests  in  the  same  property  divide  the  property  amongst 
themselves,  which  they  may  do  either  by  selling  the  property  and 
dividing  the  proceeds  or  by  dividing  the  property  itself  so  that 
each  one  becomes  the  entire  owner  of  an  aliquot  part  or  portion  of 
the  property  instead  of  an  undivided  interest  in  the  whole.  They 
may  effect  this  by  a  voluntary  united  action,  which  is  generally 
referred  to  as  amicable  partition,  or,  where  they  are  not  agreed, 
by  instituting  the  proceedings  provided  by  law,  which  will  then 
be  a  partition  involuntary  as  to  some.  Of  course  they  cannot  unite 
in  a  voluntary  amicable  partition  unless  they  are  all  sui  juris. 
A  case  may  arise  where  one  or  more  of  the  undivided  interests 
are  vested  in  a  person  under  legal  disability,  or  vested  in  a 
trustee  who  has  no  power  to  join  in  a  partition.  The  usual  power 
of  sale  vested  in  a  trustee  is  not  generally  regarded  as  sufficient 
to  enable  him  to  join  in  a  voluntary  parfition.  In  each  of  these 
cases,  however,  the  owner  of  the  undivided  interest  may  make 
a  sale  of  his  interest  to  another  tenant  in  common,  by  which  a 
partition  will  be  practically  accomplished. 

Provisions  of  the  Act. 
§  155.     The  Price  Act  contains  two  clauses  conferring  juris- 


§§  156, 157    JURISDICTION  AS  TO  PARTITION  PROCEEDINGS.      129 

diction  on  the  court  in  cases  of  partition,1  and  there  is  consid- 
erable doubt  as  to  just  what  jurisdiction  is  vested  by  the  words 
of  the  statute.  We  may  discuss  the  subject  under  two  clearly 
defined  headings  of  amicable  voluntary  partition  and  involun- 
tary partition  proceedings  in  equity  or  at  law. 

Jurisdiction  Under  the  Act  as  to  Partition  Proceedings. 

§  156.  It  seems  that  the  clause  in  Sec.  22  was  inserted  in 
order  to  provide  for  the  case  where  in  partition  proceedings  in 
equity  the  partition  could  not  be  consummated  owing  to  the  dis- 
ability of  one  or  more  of  the  parties.  The  attention  of  the 
learned  reader  is  called  to  the  distinction  which  existed  at  that 
time  between  partition  proceedings  at  law  and  partition  proceed- 
ings in  equity.  Where  the  proceedings  were  at  law,  the  judg- 
ment of  partition  operated  to  vest  the  title  in  the  parties  in  sev- 
eralty.  Where  the  proceedings  were  in  equity,  the  chancellor 
had  no  jurisdiction  to  dispose  of  the  legal  title,  and  it  was  nec- 
essary for  the  parties  to  the  proceedings  to  execute  deeds  carry- 
ing out  the  decree  of  the  court.  If  in  such  case  any  one  or  more 
of  the  parties  were  unable  to  convey,  the  proceedings  would  be 
held  up  perhaps  indefinitely.  Now,  however,  by  the  provisions 
of  the  Act  of  March  14,  I&57,3  it  is  provided  that  the  judgment 
of  partition  in  equity  shall  have  the  same  effect  as  at  law  and 
now  no  conveyances  are  necessary.  This  clause  of  the  act,  there- 
fore, may  be  regarded  as  obsolete. 

Preliminary  Discussion  of  Amicable  Partition. 

§  157.  Sec.  7  seems  to  cover  the  case  where  the  jurisdiction 
is  really  needed,  and  that  it  where  one  or  more  of  the  owners 

(1)  These  are  as  follows:   In  Sec.  2  it  is  provided  that  the  court  shall 
have  jurisdiction  to  decree  a  sale,  etc.,  "whenever  in  proceedings  in  par- 
tition in  equity  it  shall  appear  that  real  estate  cannot  be  divided  without 
prejudice  to  the  interests  of  the  owners."    In  Sec.  7,  it  is  provided  "that 
it  shall  be  lawful  for  trustees,  guardians,  committees,  married  women  and 
corporations  in  all  the  cases  aforesaid,  under  the  decree  of  the  court  as 
aforesaid,  and  with  the  like  effect  and  indemnity  to  them  in  acting  there- 
under, to  make  and  take  conveyances,  by  deed,  acknowledged  in  court, 
without  public  sale,  in  order  to  square  and  adjust  lines  between  adjoining 
owners,  to  make  and  take  conveyances,  to  perfect  the  partition  of  real 
estate  held  .in  joint  tenancy,  coparcenary,  or  in  common  with  others." 

(2)  See  Price  on  the  Act  for  the  Sale  of  Real  Estate  (1874),  p.  120. 

(3)  P.  L.  97,  §  3- 


130  VOLUNTARY  AMICABLE  PARTITION.      §§  158, 159 

of  an  undivided  interest  are  under  some  legal  disability  and  can- 
not therefore  join  in  a  voluntary  amicable  partition.  The  cases 
are  as  follows: 

§  158.  In  Wilson's  Estate,*  there  was  a  petition  presented 
for  the  sale  of  real  estate  by  certain  trustees  and  a  guardian,  set- 
ting forth  that  the  petitioners  were  seized,  as  trustees,  as  ten- 
ants in  common  of  certain  undivided  interests,  and  they  de- 
sired to  make  an  amicable  partition,  and  to  that  end  proposed  to 
join  in  one  conveyance  to  a  trustee  who  would  then  convey  back 
to  the  various  parties  the  several  purparts  agreed  upon.  The 
case  was  referred  to  an  examiner,  who  said  that  the  court  had 
no  jurisdiction  under  the  Act  of  1853  to  entertain  the  prayer  of 
the  petition,  the  jurisdiction  being  confined  to  the  case  where  it 
was  necessary  to  perfect  partition,  i.  e.,  where  proceedings  in 
partition  had  been  commenced  and  for  some  reason  defectively 
exercised,  and  to  the  case  where  it  appeared  that  the  real  estate 
could  not  be  divided  without  prejudice  to  the  interests  of  the 
owners,  etc.  The  Master's  opinion  was  adopted  by  the  court 
without  comment. 

§  159.  In  Hirsh's  Estate,5  the  testator  by  his  will  gave  the 
remainder  of  his  estate  upon  certain  trusts,  and  at  the  time  of 
his  death  was  seized  of  a  certain  undivided  interest  in  real  estate. 
An  amicable  partition  was  agreed  upon  between  the  parties,  and 
the  trustees  under  the  will  accepted  one  of  the  purparts  and  pre- 
sented a  petition  for  leave  to  make  and  execute  the  proper  deeds 
in  settlement,  and  the  court  held  that  there  was  ample  jurisdiction 
under  the  Act  of  1853  to  entertain  the  petition;  that  the  word 
"perfect"  did  not  imply  they  could  only  act  in  cases  where  par- 
tition had  already  been  begun  because  the  court  had  that  power 
in  those  cases  before  the  passage  of  the  act,6  and  the  preamble 
clearly  shows  that  it  was  passed  to  effect  free  alienation  of  es- 
tates, and  it  was  obviously  its  intention  to  enable  the  parties  to 
avoid  the  expense  and  delay  of  partition  proceedings;  that  Wil- 
son's Estate,7  was  so  meagrely  reported  that  it  was  of  no  value 
as  an  authority,  and  the  prayer  of  the  petition  was  granted. 

(4)  2  W.  N.  C.  631  (1876). 

(5)  17  W.  N.  C.  28  (1885),  s.  c.  17  Phila.  512,  42  L.  I.  454- 

(6)  Overlooking  in  this  the  difficulty  which  then  existed  in  the  case 
of  partition  proceedings  in  equity.    See  §  156,  ante. 

(7)  2  W.  N.  C.  631  (1876). 


§§  i6o,  161, 162, 163  VOLUNTARY  AMICABLE  PARTITION.          131 

§  160.  In  Thomas's  Estate,8  a  mutual  sale  and  exchange  of 
the  interests  of  tenants  in  common  was  approved.  It  was  prac- 
tically a  case  of  partition. 

§  161.  In  Hunsworth's  Estate,9  the  testator  directed  his  exe- 
cutors to  divide  his  residuary  estate  into  two  parts,  each  of 
which  he  gave  to  certain  life  tenants  with  contingent  remainders 
over.  The  two  life  tenants  made  a  partition  of  the  real  estate, 
and  the  petition  was  filed  under  the  Act  of  1853  (  it  does  not  ap- 
pear by  whom)  to,  as  stated  by  the  learned  judge,  "effect  the 
division  of  the  estate  and  bar  contingent  remainders  so  each  half 
should  be  free  from  the  remaindermen  of  the  other  half."  A 
decree  was  made  confirming  the  division  of  the  estate  as  prayed 
for,  with  the  approval  of  a  trustee  to  be  appointed  to  represent 
certain  possible  unborn  children,  contingent  remaindermen. 

The  circumstance  that  there  is  an  undivided  interest  does  not 
of  itself  authorize  a  sale  under  the  act.  Each  tenant  in  common 
may  sell  separately,  and  a  guardian  of  the  minor  co-tenant  may 
proceed  under  the  act.  The  co-tenant  sui  juris  cannot  compel 
a  sale  of  the  other  interests  under  the  act.  The  remedy  is  in  par- 
tition. See  remarks  of  Clark,  J.,  in  Spencer  v.  Jennings.10 

Conclusion  as  to  Jurisdiction  in  Case  of  Amicable  Partition. 

§  162.  It  seems  clear,  therefore,  that  in  any  case  where  there 
is  a  legal  disability  on  the  part  of  any  one  or  more  co-owners,  the 
proper  court  may  authorize  them  to  make  or  join  in  partition, 
and  in  every  case  where  any  of  the  defects  in  title  mentioned  in 
the  act  prevent  the  consummation  of  a  partition,  the  jurisdiction 
under  the  act  may  be  exercised,  the  disability  removed  and  the 
partition  perfected.  It  seems,  therefore,  as  if  the  Act  of  May 
23,  1913,"  authorizing  the  guardian  of  minors  upon  approval  of 
the  court  to  join  in  partition  is  merely  the  duplication  of  one  of 
the  provisions  of  the  Price  Act. 

Amount  of  Security  in  Partition. 

§  163.  The  amount  of  security  to  be  given  in  these  cases  will 
be  subject  to  somewhat  different  considerations  than  in  the  case 

(8)  ii  D.  R.  290  (1902). 

(9)  22  D.  R.  544  (1913). 

(10)  123  Pa.  184  (1888)  at  195-196.  See  §  22,  ante. 

(11)  P.  L.  345- 


132  VOLUNTARY  AMICABLE  PARTITION.  §  163 

of  a  sale  or  a  mortgage.  Where  money  passes  as  part  of  the 
division,  security  should  be  ordered  in  double  the  amount  but 
where  no  cash  is  paid,  there  seems  to  be  no  necessity  for  the 
party  joining  in  the  partition  to  give  substantial  security  because 
he  merely  receives  in  substitution  for  an  undivided  interest  in  cer- 
tain properties  an  entire  interest  in  another  property.  Security 
here,  if  entered  at  all,  should  be  merely  a  nominal  amount ;  per- 
haps the  bond  of  the  party  joining  in  the  partition  would  be 
sufficient. 


§§  165, 166      CEMETERIES  AND  BURIAL  GROUNDS.  133 

CHAPTER  10. 

Cemeteries  and  Burial  Grounds. 

Price  Act  seems  to  provide  for  all  cases  §  165 

Other  legislation  concerning  cemeteries   §  166 

Conclusion  as  to  cemeteries   §  167 

The  petition  §  168 

Price  Act  seems  to  Provide  for  all  Cases. 

§  165.  Land  may  be  conveyed  in  trust  for  a  cemetery  or 
burial  ground,  or  the  use  as  a  cemetery  or  burial  ground  may  be 
fixed  on  the  land  by  way  of  a  modification  of  the  fee.  Land  may 
also  be  conveyed  to  a  church  or  duly  incorporated  cemetery  com- 
pany, and  the  burial  use  fastened  upon  it  by  the  charter.  The 
act  seems  to  provide  for  the  sale,  etc.,  of  the  land  in  all  cases 
where  there  is  a  trust  under  the  clauses  relating  to  trusts.1 

Where  there  is  a  modification  of  the  fee  under  the  clause  relat- 
ing to  land  conveyed  for  special  or  limited  purposes,2  or  where 
there  is  a  corporate  charter  under  the  clause  relating  to  corpora- 
tions.3 

Other  Legislation  Concerning  Cemeteries. 

§  166.  The  courts1  authorized  by  existing  laws  to  decree  sale 
and  conveyance  of  real  estate  may4  order  and  decree  a  private 
sale  of  a  portion  of  the  real  estate  held  by  trustees  of  religious 
societies,  congregations  or  church  organizations,  to  an  associa- 
tion or  corporation  for  the  exclusive  purpose  of  a  cemetery  or 
place  of  sepulchre  for  the  dead.  Trustees,  etc.,  of  a  church,  etc., 
owning  real  estate  used  as  a  burial  ground  may  sell  the  same  by 
proceedings  in  the  Common  Pleas.5 

(1)  See  §  134,  ante.    For  a  case  of  a  sale  of  land  in  Philadelphia  devised 
in  trust  for  a  burial  ground  where  the  interments  had  been  stopped  by  the 
board  of  health,  see  Young's  Est,  224  Pa.  570  (1909).    The  surplus  pro- 
ceeds, after  providing  for  the  removal  of  the  bodies,  was  distributed  among 
the  heirs  of  the  testator. 

(2)  See  §  129,  ante. 

(3)  See  §  83,  ante.    For  an  instance  of  this,  see  Funck's  Est.,  16  Super. 
Court,  434  (1901). 

(4)  By  Act  of  March  24,  1877,  P.  L.  39,  Sec.  i,  notice  to  be  given  to 
all  parties  interested  as  the  court  shall  direct,  and  deed  to  be  acknowl- 
edged as  required  by  existing  laws. 

(5)  Act  of  May  23,  1887,  P.  L.  168. 


134  CEMETERIES  AND  BURIAL  GROUNDS.      §§  167, 168 

Any  incorporated  or  unincorporated  church,  cemetery  or  burial 
association  may,  when  for  certain  reasons  desirable  to  change 
the  location,  purchase  ground  in  the  vicinity,  remove  the  dead, 
and  sell  in  fee  simple  the  old  cemetery  grounds.  Proceedings 
for  the  removal  of  the  dead  to  be  in  the  court  of  quarter  ses- 
sions.6 The  court  of  quarter  sessions  has  jurisdiction,  where 
burial  grounds  are  vested  in  trustees  of  any  church  or  religious 
society,  to  direct  removal  of  the  dead  and  sale  of  the  ground.7 

A  borough  having  title  to  a  burial  ground  may,  upon  petition 
of  the  lot  holders,  transfer  the  same  and  the  control  to  an  in- 
corporated cemetery.8 

Conclusion  as  to  Cemeteries. 

§  167.  We  may  therefore  conclude  that  there  is  ample  juris- 
diction under  the  Price  Act  to  make  a  sale,  etc.,  of  any  ground 
used  as  a  cemetery,  and  that  there  are  a  number  of  other  acts 
duplicating  the  provisions  of  the  Price  Act.  Since,  however, 
these  other  acts  are  confined  to  certain  specific  cases,  it  may  some- 
times be  desirable  to  proceed  under  the  Price  Act  which  seems  to 
cover  every  case. 

The  Petition. 

§  168.  The  petition  should  be  presented  by  the  holder  of  the 
legal  title  to  the  burial  ground,  church,  cemetery  or  trustees,  as 
the  case  may  be.  It  is  probable  also  that  a  lotholder  in  a  ceme- 
tery would  be  a  person  in  interest  and  entitled  to  present  a  pe- 
tition. It  is  possible  also  that  a  relative  of  a  person  buried  in  the 
cemetery  would  have  sufficient  interest  to  present  a  petition.  The 
amount  of  interest  here,  however,  is  so  slight  that  no  statement 
can  be  made  as  to  whether  it  is  sufficient  to  sustain  the  petition. 
When  the  property  is  sold,  the  purchase  money  should,  of  course, 
be  held  for  the  same  uses  and  trusts  as  the  land  was  before 
and  paid  out  under  the  order  of  the  court. 

(6)  See  Act  May  26,  1891,  P.  L.  118,  as  amended  by  Act  of  June  6, 
1893,  P.  L.  325,  as  amended  by  Act  of  June  7,  1895,  P.  L.  181.     Confer, 
similar  Act  of  June  25,  1913,  P.  L.  551. 

(7)  Act  May  19,  1874,  P.  L.  208,  supplemented  by  Act  of  May  13,  1876, 
P.  L.  159,  supplemented  by  Act  of  April  18,  1877,  P.  L.  54,  supplemented 
by  Act  of  May  12,  1887,  P.  L.  96,  supplemented  by  Act  of  June  16,  1891, 
P.  L.  3!°>  amended  as  to  Sees,  i  and  2  by  Act  April  29,  1909,  P.  L.  291. 

(8)  Act  of  April  23,  1909,  P.  L.  155. 


§§  169, 170  ABSENTEES.  135 


CHAPTER  ii. 

Persons  Absent  and  Unheard  from  for  More  than  Seven  Tears. 

Preliminary    §  169 

Provisions  of  the  act   §  170 

The  circumstances  from  which  the  law  will  presume  decease  ...  §  171 

Notice  to  the  absent  one  §  172 

The  petition  §  173 

Act  of  1913  §  174 

Preliminary. 

§  169.  The  case  where  the  owner  of  land  drops  out  of  sight 
and  is  never  heard  of  again  frequently  causes  great  difficulty. 
Such  an  occurrence  will  leave  the  title  to  the  land  in  a  very  un- 
satisfactory condition  and  when  the  absent  person  holds  in  com- 
mon will  often  inflict  great  inconvenience  on  the  other  tenants 
in  common.  The  common  law  rule  was  that  a  person  was  pre- 
sumed to  be  deceased  if  he  was  absent  and  unheard  of  for  more 
than  seven  years.  A  title  resting  on  such  a  presumption,  without 
something  on  the  record  to  show  that  the  presumption  had  been 
made  out,  would  hardly  be  worth  buying.  It  is  very  important, 
therefore,  in  the  interests  of  free  alienation  of  property,  that  the 
case  be  provided  for  in  some  way  by  a  statute  which  would  ef- 
fectually guard  the  right  of  the  absent  one  and,  at  the  same  time, 
enable  the  property  to  be  disposed  of.1 

Provisions  of  the  Act. 

§  170.  The  act  provides  that  in  those  cases  where  "the  owner 
of  real  estate  may  have  been  absent  and  unheard  from  for  seven 
years,  under  those  circumstances  from  which  the  law  would  pre- 

(i)  The  administration  and  distribution  of  personal  property  in  such 
case  is  provided  for  by  the  Act  of  June  24,  1885,  P.  L,.  155,  supplemented 
by  the  Act  of  May  28,  1913,  P.  L.  373.  For  a  discussion  of  these 
statutes,  the  public  policy  involved  and  the  constitutionality  thereof,  see 
Cunnius  v.  School  District,  198  U.  S.  458  (1905),  25  Sup.  Ct.  Rep.  721, 
49  L.  ed.  1125,  affirming  206  Pa.  469,  which  reversed  21  Sup.  Ct.  340,  s.  c. 
25  Pa.  C.  C.  17.  See  discussion  of  this  case,  Gest  on  Drawing  Wills  and 
Settlement  of  Estates  in  Penna.  (1909),  p.  78,  et  seq. 


136  ABSENTEES.  §§  171, 172 

sume  his  or  her  death,"2  the  disposition  authorized  may  be  made. 
This  clause  provides  that  where  the  court  is  satisfied  that  the 
presumption  has  been  made  out,  a  sale,  etc.,  may  be  decreed,  se- 
curity being  entered  to  protect  the  interests  of  the  absent  owner.8 
The  doubt  as  to  the  constitutionality  of  this  proviso  has  already 
been  referred  to.3a  We  shall  now  assume  that  it  is  constitutional. 

The  Circumstances  from  which  the  law  will  Presume  Decease. 

§  171.  These  circumstances  are  an  unexplained  absence.  If 
there  is  no  reason  why  the  absent  owner  should  have  gone  away 
or  failed  to  communicate  with  his  family  or  friends,  the  circum- 
stances exist  under  which  the  law  will  presume  his  decease.  If 
on  the  other  hand,  it  appears  that  there  are  reasons  why  he 
should  have  gone  away,  or  why  he  should  have  remained  away 
without  communicating  with  his  family  or  friends,  the  circum- 
stances are  such  that  the  law  will  not  presume  his  decease.  Thus, 
if  an  individual  leaves  the  jurisdiction  under  accusation  of  a 
crime,  there  is  ample  reason  for  his  going  away,  and  under  such 
circumstances  the  law  will  not  presume  his  decease. 

Notice  to  the  Absent  One. 

§  172.  Furthermore,  some  effort  must  be  made  to  locate  and 
communicate  with  the  absent  owner.  This  is  generally  done  by 
inserting  an  advertisement  in  papers  which  he  might  be  likely  to 
see,  supplementing  by  such  personal  inquiries  as  may  be  thought 
advisable.  The  question  of  what  effort  must  be  made  depends 
entirely  on  the  circumstances  of  each  particular  case  and  the 

(2)  The  time  of  the  presumed  death  is  at  the  expiration  of  the  seven 
years,  probably  from  the  date  last  heard  from.    Freeman's  Est,  18  D.  R. 
194  (1009).    The  circumstances  may  indicate  that  death  occurred  earlier, 
Harmstead's  Est.,  18  D.  R.  786  (1909). 

(3)  For  a  case  where  a  sale  was  authorized,  see  Freker  v.  Berg,  193 
Pa.  442  (1899)  ;   in  this  case  a  non-resident  heir  had  been  absent  for  thir- 
teen years,  and  service  upon  him  or  his  next  of  kin  was  made  by  adver- 
tisement, as  required  by  the  court.     The  petition  was  by  executor  and 
the  sale  by  him  under  a  power.    It  was  not  clear  what  interest  the  non- 
resident had.    Query :  Why  did  not  the  executor  sell  under  the  power  with- 
out an  order  of  court?    In  Charlton's  Est,  12  Phila.  102  (1878),  s.  c.  35  L. 
I.  194,  one  tenant  in  common  apparently  had  a  sale  confirmed,  the  other 
tenant  in  common  being  absent  and  unheard  of  for  seven  years. 

(33)  See  ii,  ante. 


§§  172, 173          NOTICE  TO  THE  ABSENT  ONE.  137 

length  of  the  absence  and  will  be  governed  largely  by  such  orders 
as  the  court  may  make  relative  thereto.8 

It  seems  under  the  case  of  Cunnius  v.  School  District,6*  that 
the  advertisement  should  be  addressed  to  the  absent  person  and 
perchance  that  he  is  deceased,  to  his  heirs  and  devisees,  other- 
wise should  it  subsequently  appear  that  he  was  deceased  at  the 
time  of  the  advertisement,  there  would  have  been  no  notice  to 
the  heirs  or  devisees,  who  would  then  have  been  the  owners.7 

Notice  to  the  heirs  is  not  essential  although  it  is  desirable  to 
have  them,  or  as  many  of  them  as  can  be  reasonably  communi- 
cated with,  join  in  the  petition  merely  as  persuasive  evidence  of 
the  propriety  of  the  sale.  The  jurisdiction  under  the  act  is  based 
on  the  presumption  of  death,  and  although  the  presumption  may 
be  that  the  death  occurred  many  years  beofre,  where  the  proceed- 
ings are  taken  a  considerable  time  after  the  lapse  of  the  seven 
years,  yet  the  title  to  the  premises  in  question  remains  in  the  absent 
one  until  the  deed  is  delivered  in  the  proceedings  under  the  act.8 

Petition. 

§  173.  The  petition  should  be  presented  by  the  person  who 
would  inherit  the  property,  or  where  there  is  an  undivided  in- 

(6)  In  Ulrich's  Est,  14  PhiJa.  243  (1880),  s.  c.  38  L.  I.  5,  the  report 
was  referred  back  to  the  examiner  to  take  further  testimony.    The  court, 
Hanna,  P.  J.,  said  that  it  was  not  enough  to  show  that  the  person  in 
question  had  left  and  not  been  heard  from,  but  that  the  testimony  must 
go  further  and  show  that  some  attempt  had  been  made  to  find  him  and 
communicate  with  him  at  the  place  he  was  believed  or  known  to  have 
gone.    In  Taylor  v.  Hoyt,  15  Atl.  Rep.  892  (1882),  s.  c.  2  Mona.  206,  one 
heir  presented  a  petition  for  authorization  of  a  sale  without  notice  to  the 
absent  one.    There  was  no  attempt  made  to  notify  him  and  no  notice  by 
publication,  and  it  was  held  that  the  title  of  the  purchaser  under  the  sale 
authorized  would  not  avail  him  as  against  the  absent  person  in  an  action 
of  ejectment.     The  case  is  rather  blindly  reported,  and  it  is  difficult  to 
tell  just  what  the  facts  were.    It  was  argued  in  this  case  that  no  attempt 
need  be  made  to  notify  the  absentee  because  the  law  presumes  him  dead 
by  his  absence.    The  act  says,  however,  "absence  for  seven  years  under 
circumstances  from  which  the  law  will  presume  decease,"  and  those  cir- 
cumstances apparently  are  something  more  than  a  mere  absence. 

(6a)  198  U.  S.  458  (1905),  25  Sup.  Ct.  Rep.  721,  49  L.  ed.  1125,  affirming 
206  Pa.  469,  which  reversed  21  Sup.  Ct.  340. 

(7)  For  this  suggestion,  I  am  indebted  to  my  learned  friend,  T.  W. 
Jopson,  Esq.,  of  the  Philadelphia  Bar. 

(8)  See  §  225  post. 
IO 


138  ABSENTEES.  §  174 

terest  by  some  one  or  all  of  the  other  tenants  in  common.  Se- 
curity must  be  entered  and  the  court  will  in  due  course,  after 
sufficient  time  has  elapsed,  depending  on  the  circumstances  of  the 
case,  order  a  distribution  of  the  purchase  money.  Since  the  Price 
Act  provides  that  the  purchase  money  shall  be  held  for  the  same 
interests  as  were  divested  from  the  land  by  the  proceedings  under 
the  act,  it  follows  that  the  purchase  money  must  be  held  only  for 
the  absent  one  or  his  heirs  or  devisees.  If  it  is  distributed  at  all  in 
his  absence,  it  is  probably  to  be  distributed  under  the  Act  of  June 
24,  1885.** 

Act  of  May  28,  1913. 

§  174.  It  is  provided  by  the  Act  of  May  28,  1913,°  that  in  the 
case  where  the  owner  of  property,  has  been  absent  more  than 
seven  years,  the  court  may  upon  proceedings  as  therein  provided, 
enter  a  decree  that  the  presumption  of  the  death  of  the  person 
has  been  established,  whereupon  the  real  estate  of  the  absent  per- 
son shall  devolve  as  if  he  had  actually  died  intestate,  and  that 
the  decree  shall  be  recorded  in  the  office  of  the  recorder  of  deeds 
of  the  proper  county;  security  to  be  given  as  required  by  the 
court.  It  is  difficult  to  see  what  this  act  is  intended  to  cover 
and  there  is  grave  doubt  as  to  its  constitutionality.  It  pro- 
vides for  the  case  where  the  owner  of  the  entire  interest  in 
the  property  is  absent  and  unheard  of,  and  his  heirs  wish  to  take 
possession  of  the  property  and  enjoy  the  fruits  of  ownership. 
Where  there  is  an  undivided  interest,  the  other  tenants  in  common 
may  receive  the  rents,  and  there  does  not  seem  to  be  the  same  ne- 
cessity for  such  legislation. 

(&i)  P.  L.  iSS,  as  supplemented  by  the  Act  of  June  28,  1913,  P.  L.  373. 
(9)  P.  L.  369- 


§§  177, 1 78  SECURITY.  139 


CHAPTER  12. 
Security. 

Preliminary,  provisions  of  the  act  §  177 

Cases  where  bond  is  required   §  178 

Amount  of  the  bond  §  179 

Sureties  on  the  bond   §  180 

Cost  of  obtaining  security  §  181 

Time  of  filing  bond  §  182 

Necessity  of  filing §  183 

Guardian's  security  where  land  lies  in  another  county  §  184 

Where  party  making  sale  resides  in  one  county  and  land  is  in 

another    §  185 

Provisions  of  the  Act  as  to  Security. 

§  177.  The  provisions  of  the  act  as  to  the  giving  of  security 
are  of  vital  importance.  Several  questions  arise:  (i)  as  to  the 
amount  of  the  bond,  (2)  as  to  the  sureties,  (3)  as  to  the  time 
of  filing,  (4)  as  to  the  necessity  of  filing.1 

Cases  Where  the  Bond  is  Required. 

§  178.  The  bond  is  expressly  required  by  the  provisions  of 
Sections  4  and  10  of  the  act  to  be  filed  in  all  cases  of  a  sale  or 

(i)  The  provisions  of  the  act  are  as  follows: 

"Sec.  4.  And  Provided  Further,  That  no  sale  or  sales  shall  be  ordered 
or  made  under  the  provisions  of  this  act,  in  any  case,  until  security,  to 
be  approved  by  the  Court  of  Common  Pleas  or  Orphans'  Court,  be  given 
in  at  least  double  the  value  of  the  interest  proposed  to  be  sold." 

"Sec.  6.  ...  and  before  any  decree  shall  be  executed,  the  person  or 
persons  entrusted  to  execute  the  same,  shall  give  adequate  security  to 
the  commonwealth,  to  be  approved  by  the  court,  conditioned  for  the  faith- 
ful execution  of  the  trust  and  proper  application  of  all  moneys  to  be 
received,  according  to  the  trust  and  decree  of  the  court,  which  security 
shall  enure  to  the  benefit  of  all  parties  interested,  and  such  security  being 
so  given,  no  purchaser  or  lessee  shall  be  bound  to  see  to  the  application 
of  the  purchase  money  or  rents,  or  be  in  any  manner  liable  to  be  affected 
by  the  former  trusts  or  limitations  upon  the  premises." 

"Sec.  10.  That  the  directions  given  in  the  sixth  section  of  this  act  in 
regard  to  the  security  to  be  given  in  cases  of  sales,  morgage,  or  letting 
of  real  estate,  and  the  condition  of  the  bond  or  security  therein  prescribed, 
shall  apply  to  all  cases  of  sales  or  mortgage,  of  real  estate  by  order  of 
the  courts  of  this  commonwealth." 


140  SECURITY.  .  §  179 

mortgage,  and  by  Section  6  it  is  provided  that  before  any  decree 
shall  be  executed,  the  person  or  persons,  etc.,  shall  give  adequate 
security  to  the  commonwealth.  It  is  clear,  therefore,  that  in 
every  case  of  a  sale,  mortgage  or  conveyance  on  ground  rent, 
there  is  a  necessity  of  having  a  bond  filed.  In  the  case  of 
a  lease  there  is  no  special  requirement  for  a  bond  except  in  so 
far  as  Sec.  6  requires  a  bond  to  be  filed  in  all  cases  before  the 
decree  of  the  court  can  be  executed.  In  many  cases  where  a  lease 
is  authorized  no  security  is  practically  necessary  because  the  party 
holding  the  legal  title  either  owns  it,  and  is  therefore  entitled  to 
the  rents,  or  has  already  given  security. 

It  is  provided  in  Section  7  that  the  court  may  authorize  con- 
veyances to  square  and  adjust  lines  between  adjoining  owners, 
perfect  partition  and  authorize  the  purchase  of  adjoining  real 
estate  or  the  purchase  of  real  estate  to  protect  any  security  or 
rent  held  on  property  exposed  to  judicial  sale  under  the  decree 
as  aforesaid,  and  with  like  effect  and  indemnity  to  them  in  acting 
thereunder,  which  perhaps  means  that  in  these  cases  a  bond  also 
should  be  filed.  There  does  not  seem  to  be  any  necessity,  how- 
ever, for  a  bond  to  be  filed  in  case  of  partition  of  real  estate  ex- 
cept to  cover  owelty  or  in  the  case  of  squaring  and  adjusting 
lines,  or  in  the  case  of  a  purchase  of  real  estate,  and  the  practice 
seems  to  be  not  to  require  a  bond  in  these  cases. 

The  Act  of  April  18,  i864,2  provides  that  conveyances  may  be 
made  to  change  in  part  or  in  whole  the  route  or  location  of  any 
right  of  way  or  passage  existing  over  and  upon  adjoining  and 
other  lands,  and  that  it  is  to  be  in  the  discretion  of  the  court 
whether  to  require  security  in  any  such  case.  This  provision 
seems  very  clear  and  it  is  not  probable  that  in  a  case  of  this  kind 
the  court  would  require  any  security  at  all.3 

Amount  of  the  Bond. 

§  179.  The  provisions  of  the  act  as  to  the  amount  of  security 
required,  are  conflicting.  Sec.  4  provides  for  security  in  at  least 

(2)  P.  L.  462,  Sec.  i. 

(3)  The  Act  of  Feb.   24,   1834,   P.   L.   70,   Sec.  43,  provides  that  no 
executor  or  administrator  shall  have  power  to  execute  a  decree  of  the 
Orphans'   Court   for  sale  of  real  estate  without  giving  security  to  the 
Orphans'  Court  having  jurisdiction  of  his  accounts.     The  provisions  of 
the  Price  Act  seem  to  be  partially  a  re-enactment  of  this  statute.    This  act 
does  not  fix  the  amount  of  the  security  as  the  Price  Act  does. 


§  i8o  SURETIES  ON  THE  BOND.  141 

double  the  value  of  the  interest  to  be  sold,  and  Sec.  6  provides 
for  the  giving  of  adequate  security.  It  has  been  decided  that  the 
security  need  not  necessarily  be  in  double  the  amount  of  the  sale, 
but  that  the  court  may  order  more  than  double  the  amount,  in 
its  discretion.4 

The  purchase  price  is  almost  universally  regarded  as  fixing  the 
value  of  the  interest  for  the  purpose  of  determining  the  amount 
of  the  security.  Judges  will  sometimes  order  security  in  less 
than  double  the  amount,  and  a  purchaser,  out  of  a  superabun- 
dance of  caution,  may  sometimes  object.  The  decree  may  easily 
be  amended  in  such  a  case  so  as  to  increase  the  security  to  the 
amount  required.  Perhaps  the  best  general  rule  is  to  always  fix 
the  security  in  double  the  amount,  and  if  the  circumstances  of 
the  case  so  require,  the  amount  may  be  increased  beyond  that 
sum.  Some  counsel  leave  the  amount  of  the  security  blank  in 
the  decree  so  the  judge  may  fill  in  the  amount.  There  is  no  ob- 
jection to  filling  in  double  the  amount  in  preparing  the  decree  in 
all  cases  and  this  will  save  the  judge  some  trouble  in  filling  up 
the  decree.  The  amount  of  the  security  can  always  be  calculated 
because  the  amount  of  the  purchase  price  must  always  be  certain 
and  set  out  in  the  petition.  Some  counsel  merely  insert  in  the 
decree  "Security  in  double  the  amount."  This  is  a  very  loose 
practice  and  not  to  be  sanctioned.  The  decree  should  read  "Se- 
curity in  the  sum  of  dollars,"  and  the  amount  of  the  se- 
curity could  be  actually  set  out  in  figures  so  there  may  be  no 
controversy  about  it. 

Where  the  interest  is  undivided,  the  amount  of  the  bond  should 
only  cover  the  undivided  interest  in  the  purchase  money  and  not 
the  whole  amount  received  for  the  property. 

Sureties  on  the  Bond. 

§  180.  The  act  makes  no  requirement  as  to  the  number  and 
character  of  the  sureties,  which  is  regulated  generally  by  the 
discretion  of  the  court.  Corporate  security  is  usually  regulated 
under  rules  of  court,  and  where  individual  surety  is  offered  they 
must  qualify  as  to  responsibility  under  the  rules  of  the  court. 

Exceptional  cases  may  perhaps  arise  where  the  court  will  dis- 
pense with  sureties  altogether  and  accept  the  bond  of  the  party 

(4)  Thorn's  App.,  35  Pa.  47  (1860).  Price  on  The  Act  for  the  Sale 
of  Real  Estate,  (1874)  p.  139. 


142  SECURITY.  §  181 

authorized  to  act.  Thus,  where  there  is  a  perpetual  trust  for  a 
charity,  and  the  cestui  que  trust  is  a  charitable  corporation  the 
court  may,  with  the  consent  of  the  cestui  que  trust,  authorize 
the  trustees  of  the  property  making  the  sale  to  file  their  own 
bond  and  accept  that  as  sufficient  security. 

Where  the  disposition  is  made  by  a  trust  company,  which  has 
obtained  the  approval  of  the  court  to  act  as  surety,  the  prac- 
tice in  Philadelphia  County  is  to  direct  them  to  give  their  own 
bond  in  double  the  amount  of  the  proceeds  of  the  sale.  In  the 
case  of  an  individual,  where  the  cash  received  is  merely  nominal, 
or  where  all  parties  in  interest  are  sui  juris  and  agree,  a  bond 
without  sureties  will  be  proper.  It  sometimes  happens  that  a 
guardian  will  join  in  the  sale  where  the  undivided  interest  of  a 
minor  is  an  infinitesimal  amount,  sometimes  so  small  that  it  will 
be  entirely  consumed  to  pay  the  costs  of  the  proceedings.  There 
is,  in  such  case,  no  reason  to  require  any  sureties,  and  the  bond 
of  the  guardian  may  be  accepted  as  sufficient.  This  part  of  the 
act,  giving  discretion  to  the  court  in  the  matter  of  security,  it  a 
very  wise  provision  and  assists  materially  in  the  practical  appli- 
cation of  the  statute. 

Cost  of  Obtaining  Security. 

§  181.  The  cost  of  obtaining  security  may  be  credited  in  the 
account  as  a  charge  against  the  fund  under  the  provisions  of 
the  act  of  June  24,  i895.6 

A  number  of  questions  arise  frequently  as  to  the  rights  of  the 
parties  interested  in  the  fund  to  proceed  against  the  sureties 
on  the  bond.  The  law  as  to  this  does  not  depend  on  any  prin- 
ciples peculiar  to  the  Price  Act,  and  therefore  we  will  not  con- 
sider them  at  all.  A  few  cases  are  collected  in  the  note.5a 

(5)  P.  L,.  248,  Constitutionality  affirmed  in  Clark's  Est.,  195  Pa.  520 
(1900),  reversing  10  Super.  Ct.  423,  which  affirmed  7  D.  R.  9  (1897),  s.  c. 
20  Pa.  C.  C.  439. 

(5a)  Commonwealth  v.  McDonald,  170  Pa.  221  (1895);  Stewart  v. 
Moody,  4  Watts  169  (1835)  ;  Sawyers  v.  Hicks,  6  Watts  76  (1837)  ;  Com- 
monwealth v.  McGovern,  4  Super.  Ct.  598  (1897)  >  Commonwealth  v. 
Winters,  4  W.  N.  C.  346  (1877),  s.  c.  12  Phila.  226,  34  L.  I.  338;  Com- 
monwealth v.  Hilgert,  55  Pa.  236  (1867)  ;  Miles  v.  Commonwealth,  2 
Walk.  64  (1884)  ;  Commonwealth  v.  American  Bonding  Co.,  25  Super. 
Ct.  145  (1904)  ;  Commonwealth  v.  Trust  Co.,  16  Super.  Ct.  570  (1901)  ; 
Commonwealth  v.  Messinger,  237  Pa.  I  (1912)  ;  Commonwealth  v.  Magee, 
24  Super.  Ct.  329  (1904). 


§§  1 82, 183  FILING  OF  THE  BOND.  143 

Time  of  Filing  Bond. 

§  182.  Notwithstanding  the  words  of  the  act,  "No  sale  shall 
be  ordered  or  made  until  security  be  given,"  it  is  sufficient  if  the 
bond  is  filed  at  any  time  before  the  confirmation  of  the  sale.6 
Where  the  practice  is7  to  make  the  decree  read  that  the  sale  is 
confirmed  upon  giving  security,  the  giving  of  security  fulfills  the 
condition,  and  the  sale  becomes  immediately  confirmed  without 
any  further  action  of  the  court,  except  such  action  of  approving 
the  surety  as  may  be  necessary. 

Where  the  record  shows  that  the  bond  has  been  approved  by 
two  associate  judges  and  filed,  no  further  evidence  is  necessary, 
and  parol  evidence  that  it  was  not  so  approved  is  inadmissible  to 
contradict  the  record.8 

As  to  the  Necessity  of  Filing  Bond. 

§  183.  It  was  held  that  the  provisions  as  to  giving  security 
contained  in  some  of  the  earlier  acts  were  merely  declatory,  and 
the  filing  was  not  essential  when  the  court  confirmed  the  sale,9 
and  that  the  omission  of  the  bond  could  only  be  set  up  upon  ap- 
peal from  the  decree  and  not  in  a  collateral  action.  Thus,  in 
the  case  of  Dixey's  Excrs.  v.  Lanning  and  Sill,10  there  was  a  sale 
to  the  plaintiff  by  the  administrator  for  the  payment  of  debts 
under  the  Act  of  1832.  The  administrator,  however,  did  not  give 

(6)  Greenwalt's   App.,   37   Pa.   95    (1860) ;     Thorn's   App.,   35    Pa.   47 
(1860).    Purchaser  excepted  to  the  confirmation  of  the  sale  on  the  ground 
that  the  security  was  not   filed  before  the   sale  was  ordered  or  made, 
which  exceptions  were  overruled,  and  decree  made  that  the  sale  be  con- 
firmed on  the  filing  of  security.    Brook's  Est.,  3  Phila.  516,  s.  c.  16  L.  I. 
372  (1859). 

(7)  As  in  Philadelphia  County. 

(8)  Leedom  v.  Lombaert,  80  Pa.  381  (1876). 

(9)  In  Lockhart  v.  John,  7  Pa.  137  (1847),  a  sale  was  made  and  con- 
firmed without  security,  and  it  was  held  that  the  Orphans'  Court  could 
not  five  years  later  set  aside  the  first  sale  because  no  security  given, 
and  divest  the  title  of  the  purchaser  as  against  purchaser  at  second  sale 
properly  confirmed.     The  action  was  ejectment  by  the  second  purchaser 
against  the  first.    So  also  in  Potts  v.  Wright,  (1876)  82  Pa.  498,  s.  c.  34 
L.  I.  148,  24  Pitts.  L.  J.  125,  5  L.  Times  O.  S.  35,  9  Lane.  Bar  14,  the 
decree  was  held  valid  in  an  action  of  ejectment  by  purchaser  at  the  ad- 
ministrator's sale  for  payment  of  debts  notwithstanding  the   failure  to 
file  a  bond. 

(10)  49  Pa.  143  (1856). 


144  SECURITY.  §  183 

the  security  which  was  ordered  by  the  court,  although  sale  was 
confirmed  apparently  in  the  same  decree  which  ordered  the  sale. 
The  subject  of  the  sale  was  a  ground  rent,  and  the  owner  of 
the  ground,  it  was  held,  could  not  set  up  the  failure  to  give  bond 
as  a  defect  in  the  plaintiff's  title  which  would  prevent  the  latter 
from  recovering  the  ground  rent. 

It  has  not  been  decided  whether  the  filing  of  the  bond  is  nec- 
essary under  the  provisions  of  the  Act  of  1853.  The  language 
of  Kennedy,  P.  J.,  in  the  court  below,  in  Kreimendahl  v.  Neu- 
hauser,12  seems  to  countenance  the  doctrine  that  if  the  court 
confirms  the  sale,  the  giving  of  security  is  not  essential  to  the 
validity  of  the  title  of  the  purchaser. 

It  may,  however,  be  strictly  argued  that  the  giving  of  security 
is  essential  in  all  cases  where  there  are  interests  to  protect, 
because  those  interests  have  been  divested  of  their  grasp  of 
the  land  by  the  proceedings  under  the  act,  and  unless  they  are 
given  some  substantial  equivalent  for  the  land,  there  is  room  to 
doubt  the  constitutionality  of  the  act.  The  court,  therefore,  must 
see  that  there  shall  be  sufficient  security  given  so  that  the  entire 
purchase  money  will,  beyond  a  doubt,  be  forthcoming  at  the 
proper  time. 

It  would  be  very  unsafe  to  take  a  title  under  proceedings  under 
the  act  unless  a  bond  has  been  filed,  and  the  better  practice  is 
to  see  that  the  bond  has  been  filed  before  paying  the  purchase 
money.  The  general  practice  is,  where  a  sale  is  confirmed,  for 
the  court  to  confirm  upon  security  being  filed.  Filing  the  se- 
curity therefore,  is  necessary  to  the  taking  effect  of  the  decree, 
and  this  obviates  any  question  as  to  whether  the  filing  is  neces- 
sary. It  is  clear  that  in  the  case  of  a  private  sale  the  security 
must  be  filed  or  the  lien  of  debts  of  a  decedent  not  of  record 
will  not  be  discharged.13 

The  act  in  Sec.  6.  provides  that  such  security  being  so  given, 
no  purchaser  or  lessee  shall  be  bound  to  see  to  the  application 
of  the  purchase  money  or  rents,  or  be  in  any  manner  liable  to 
or  affected  by  the  former  trusts  or  limitations  upon  the  prem- 

(12)  13  Super.  Ct.  606  at  609   (1900).     This  was  a  case  of  an  action 
of  ejectment  against  the  purchaser,  the  sale  not  being  confirmed.     Judg- 
ment was  entered  for  the  plaintiff.    See  §  248,  post. 

(13)  See  Act  of  March  23,  1867,  P.  L,.  43,  Sec.  2. 


§  184  SECURITY  IN  ANOTHER  COUNTY.  145 

ises.13a  It  seems  clear,  therefore,  that  even  if  the  title  will  pass 
without  a  bond  being  filed,  the  purchaser  will  in  such  case  be 
bound  to  see  to  the  application  of  the  purchase  money. 

If  no  bond  is  filed  and  the  sale  is  unconfirmed,  no  title  will 
pass  by  the  deed. 

In  Kreimendahl  v.  Neuhauser,14  there  was  an  order  confirming 
a  private  sale  upon  security  being  entered.  The  security  was 
never  entered,  and  it  was  held  there  was  no  decree  of  confirma- 
tion. The  court  below  said  that  security  must  be  entered  and  a 
report  that  it  had  been  done  made  with  the  return  of  sale.  The 
language  of  Kennedy,  J.,  in  the  court  below,  must  be  confined 
to  the  case  of  a  sale,  public  or  private,  upon  a  previous  order, 
and  the  learned  judge  may  have  so  intended.  Is  not  applicable 
to  the  case  of  a  confirmation  of  an  already  completed  sale.  It 
is  the  duty  of  the  court  to  order  security  when  required  by  the 
parties  and  failure  to  do  so  will  be  ground  for  reversal  on  ap- 
peal. No  purchaser  can  be  compelled  to  take  title  where  no 
bond  has  been  filed,  even  if  the  sale  is  confirmed.  In  all  cases 
where  the  court  confirms  the  sale  already  made,  the  better  prac- 
tice is  to  make  the  decree  recite  that  the  sale  is  confirmed  upon 
security  being  entered  in  such  a  sum.  The  decree  is  then  of 
no  effect  until  the  security  is  entered.  It  behooves  the  purchaser 
in  all  such  cases  to  see  that  the  bond  has  in  fact  been  entered  be- 
fore paying  the  purchase  money  and  accepting  the  deed.  It  is 
better  conveyancing  to  recite  in  the  deed  the  fact  that  security  has 
been  entered. 

Guardian's  Security  Where  land  Lies  in  Another  County. 

§  184.  There  is  a  special  provision  as  to  security  by  the  guard- 
ian in  Section  3,15  under  which  clause  it  is  clear  that  the  court 
of  the  jurisdiction  over  the  land  need  not  order  security  if  the 

(133)  Price  on  The  Act  for  the  Sale  of  Real  Estate,  (1874)  p.  137. 

(14)  13  Super.  Ct.  606  (1900). 

(15)  The  provision  is  as  follows:   "That  in  case  of  the  appointment  of 
a  guardian  by  the  court,  and  the  payment  over  of  money  to  him  or  of  the 
payment  of  money  to  any  former  guardian,  the  court  shall  take  adequate 
security  for  the  faithful  application  of  such  money,  and  before  the  pay- 
ment of  any  money  to  any  guardian  not  within  the  court's  jurisdiction,  the 
court  shall  be  duly  notified  that  adequate  security  has  been  given  to  the 
court  having  jurisdiction  over  him,  whether  within  or  without  this  com- 
monwealth. 


146  SECURITY.  §  185 

court  appointing  the  guardian  has  required  sufficient  security 
and  due  notice  thereof  has  been  given  to  the  court  ordering  the 
sale. 

Where  Party  Making  Sale  Resides  in  One  County  and  Land  is  in  Another. 

§  185.  Where  the  party  who  is  to  give  security  and  execute 
the  deed  lives  in  one  county  and  the  land  lies  in  another  county, 
the  security  may  be  entered  and  approved  in  the  court  of  the 
county  where  the  party  lives,16  and  upon  such  approval  being 
made,  a  certificate  thereof  shall  be  forwarded  to  the  court  of 
the  county  where  the  lands  lie,  and  such  certificate  shall  be  suf- 
ficient security  as  if  it  had  been  filed  and  approved  directly  in  the 
court  making  the  decree  of  sale.  This  provision  is  a  very  wise 
one  because  the  question  of  personal  responsibility  and  the  quali- 
fication of  sureties  is  a  matter  which  can  be  best  determined 
by  the  court  having  jurisdiction  over  the  parties,  and  an  op- 
portunity should  be  given  to  responsible  persons  to  qualify  in 
their  own  court  and  not  run  the  risk  of  being  refused  in  the  court 
of  a  distant  county  where  they  are  not  known.17 

(16)  The  Act  of  March  23,  1867,  P.  L.  43,  Sec.  2,  supplementary  to  the 
Price  Act,  provides  "the  security  required  by  said  act  may  be  approved 
by  the  proper  court  of  like  jurisdiction  of  the  county  in  which  the  grantor 
or  one  of  them  is  resident,  and  be  certified  under  the  seal  of  such  court 
to  that  wherein  the  sale  was  decreed,  and  such  certificate  shall  be  copied 
on  the  records  thereof." 

(17)  See  §  16,  ante. 


§  187  PURCHASE  MONEY.  147 


CHAPTER  13. 
Purchase  Money. 

Purchase  money  takes  the  place  of  land  sold  §  187 

Account  of  proceeds  §  188 

Devolution  of  the  purchase  money 

Preliminary,  provisions  of  the  act  §  189 

As  to  interest  of  a  minor,  etc §  190 

Interest  of  a  lunatic,  habitual  drunkard,  married  woman §  191 

Interest  of  a  person  sui  juris  §  192 

Effect  of  equitable  conversion  §  193 

Mortgage  money §  194 

Rents    §  195 

Proceeds  of  conveyance  on  ground  rent §  196 

Purchase  Money  Takes  the  Place  of  Land  Sold. 

§  187.  The  purchase  money  takes  the  place  of  the  land  sold 
in  all  respects,  and  upon  this  circumstance  the  constitutionality 
of  the  fact  to  a  large  extent  depends.1  All  interests  in  the  land 
and  limitations  thereof  take  effect  upon  and  apply  to  the  purchase 

(i)  The  act  provides  in  Sec.  6  as  follows:  That  the  purchase  money, 
or  mortgage  money,  ground  or  other  rent  reserved,  shall  in  all  respects 
be  substituted  for  the  real  estate  sold,  mortgaged  or  let,  as  regards  the 
enjoyment  and  ownership  thereof,  after  the  payment  of  liens,  and  shall 
be  held  for  or  applied  to  the  use  and  benefit  of  the  same  persons,  and  for 
the  same  estate  and  interest,  present  or  future,  vested,  contingent,  or 
executory,  as  the  real  estate  sold,  mortgaged,  or  let,  had  been  held,  except 
only  such  remainders,  after  an  entailment  or  contingent  remainders  as 
shall  have  been  bared  or  defeated  as  aforesaid,  and  those  entitled  to  a 
present  interest  in  such  real  estate,  shall  receive  the  interest  of  the  pro- 
ceeds or  rents  thereof,  unless  expressly  directed  to  accumulate :  Provided, 
That  no  principal  moneys  raised  by  sale  or  mortgage,  as  aforesaid,  shall 
be  expended  for  any  other  purpose  than  for  the  payment  of  liens  upon 
or  the  improvement  of  the  same  real  estate  when  mortgaged,  or  other 
real  estate  when  held  for  the  same  uses  and  persons,  unless  the  same  be 
required  for  the  maintenance  and  education  of  parties  having  the  like 
interest  vested  or  expectant,  and  can  be  equally  and  equitably  so  applied, 
and  without  diminution  of  the  capital  that  may  of  right  become  the  prop- 
erty of  parties  having  unbarred  interests  or  title  in  remainder  or  by  exec- 
utory devise,  and  it  shall  be  the  duty  of  the  court  to  decree  the  proper 
application  of  all  purchase  or  mortgage  moneys  and  rents,  which  the  aid 
of  an  auditor,  when  deemed  necessary,  to  the  discharge  of  liens  and  to 
parties  interested,  as  and  when  they  may  be  entitled. 


148  PURCHASE  MONEY.  §  187 

money  in  the  same  manner  and  to  the  same  extent  as  they  did 
to  the  land  which  was  sold.2  Thus,  where  property  is  sold  under 
the  act,  the  question  of  the  conflicting  rights  of  the  parties  en- 
titled under  the  limitations  will  not  be  permitted  to  interfere  with 
the  sale.3  And  where  all  the  interests  in  the  land  are  acquired 
by  one  person,  and  the  trust  limited  comes  to  an  end,  he  is  en- 
titled to  have  the  fund  in  the  hands  of  the  trustees  paid  over  to 
him.4 

Where  the  sale  is  by  trustees,  the  proceeds  of  the  sale  are  to 
be  invested  on  the  same  trusts  as  the  land  which  was  sold.5  In 
ordering  a  sale  under  the  act  the  court  may  direct  the  purchase 
money  to  remain  charged  on  the  premises  for  the  benefit  of  the 
widow  during  life.6 

It  must  be  remembered  that  where  the  cestui  que  trust  has  a 
claim  upon  a  title  which  is  sold,  he  may  follow  the  title  and  as- 

(2)  The  special  case  of  a  contingent  remainder  is  discussed,  §  97  ante. 
Where  the  guardian  of  a  minor  sells  his  ward's  interest  at  private  sale 
and  the  land  is  subject  to  the  lien  of  debts  of  the  ward's  father  not  of 
record,  the  guardian  must  pay  the  proceeds  of  the  sale  to  the  administrator 
of  the  father  for  distribution  to  the  creditors,  Yard's  Est.,  15  W.  N.  C. 
422   (1885),  s.  c.  17  Phila.  436,  42  L.  I.   17.     Blake's   Est,   134  Pa.  240 
(1890)   was  a  case  of  a  distribution  of  the  proceeds  of  real  estate  sold 
under  the  Price  Act,  and  illustrates  the  principle  that  the  proceeds  are 
to  be  disposed  of  the  same  as  the  land.    The  controversy  was  over  the 
order  of  payment  of  debts  and  legacies.     Fulton's  Est.,  51   Pitts.  L,.  J. 
257  (1904);    Foster's  App.,  74  Pa.  391   (1874). 

(3)  Goddard's  Est.,   198  Pa.  454   (1901),  affirm.  9  D.  R.  703    (1909), 
party  objecting  to  sale  set  up  the  invalidity  of  an  appointment;    it  was 
held  the  question  was  premature  as  it  could  be  settled  on  the  distribution 
of  the  proceeds. 

(4)  Owens'  Est.,   15  Pa.  C.  C.   196   (1894),   s.  c.  3  D.  R.  331;    Bru- 
baker's  App.,  65  Pa.  317  (1871).    As  to  attachment  of  an  interest  in  the 
purchase  money  in  the  hands  of  the  trustee,  see  Hoopes  v.  Price,  17  Phila. 
98   (1884),  s.  c.  41  L.  I.  p.  114.     In  Hepburn's  App.,  65  Pa.  468  (1870), 
there  was  a  married  woman's  trust  of  real  estate  created  by  deed.    The 
trustees  sold  the  property  under  order  of  the  court,  [the  reporter  in  the 
syllabus  says,  under  the  Act  of  1853]  and  the  husband  having  died,  she 
was  entitled  to  terminate  the  trust  in  the  proceeds  the  same  as  she  would 
in  the  land,  the  court  relying  on  the  provision  in  the  act  to  the  effect 
that  no  change  in  the  right  of  the  cestui  que  trust  shall  result  from  any 
change  in  the  nature  of  the  property  terminating  the  trust. 

(5)  Trust  for  burial  ground,  Funck's  Est.,   16  Super.  Ct.  434   (1901) 
dictum. 

(6)  Helfrich  v.  Weaver,  61  Pa.  385  at  386  (1869). 


§  1 88  ACCOUNT  of  THE  PROCEEDS.  149 

sert  his  claim  as  against  the  purchaser  unless  the  latter  has  bought 
for  value  without  notice,  in  which  case  the  equitable  claim  will 
be  discharged  and  thrown  upon  the  proceeds  of  the  sale.7  Thus 
the  cestui  que  trust  of  the  land  standing  in  the  name  of  the 
decedent  and  sold  as  his  estate  under  the  Act  of  1853,  may  fol- 
low the  proceeds  and  assert  his  claim  thereto  in  the  Orphans' 
Court  which  will  have  jurisdiction  to  determine  the  same.8  The 
proceeds  of  a  sale  or  mortgage  are  to  be  substituted  for  the  real 
estate  and  can  be  applied  to  the  payment  of  debts  not  of  record 
only  upon  decree  of  the  Orphans'  Court  having  jurisdiction  of 
the  executor's  or  administrator's  account,  and  upon  it  appearing 
that  the  personal  estate  is  insufficient.9 

Account  of  the  Proceeds. 

§  188.  The  person  who  has  received  the  purchase  money  is 
bound  to  file  an  account  at  the  proper  time,10  which  account  may 
be  finally  confirmed  by  consent  of  all  parties  in  interest,  or 
audited,  if  necessary.  Where  the  property  sold  is  part  of  a  con- 
tinuing trust,  the  proceeds  are  generally  accounted  for  in  the  next 
account  of  the  trustees,  and  it  is  not  necesary  to  file  a  separate 
account  unless  specially  directed  by  the  court  or  the  proceeds 
comprise  the  only  fund  of  which  there  is  to  be  an  accounting.11 

Where  money  arising  from  sale  of  land  under  the  act  has  been 
awarded  to  the  trustees  for  the  widow  of  the  testator  for  life, 

(7)  For  a  further  discussion  of  this  point,  see  §  222,  post,  as  to  title 
passed  at  the  sale. 

(8)  McCarron's   Est,   15   W.    N.   C.   485    (1884).     In   this   case  there 
was   a   petition    for  issue   to   the   Common   Pleas,    which   was    refused, 
the  court  holding  that  the  provisions  of  the  Act  of  April  20,  1846,  P.  L,. 
411,  Sec.  2,  do  not  apply  to  a  controversy  over  the  proceeds  of  a  sale 
under  the  Price  Act. 

(g)  Trunkey,  J.,  in  Spencer  v.  Jennings,  114  Pa.  618  at  326  (1887), 
s.  c.  19  W.  N.  C.  10,  44  L.  I.  230,  34  Pitts.  L.  J.  243. 

(10)  The  provisions  of  the  act  are  as  follows:  Sec.  7.  All  persons  en- 
trusted with  moneys  raised  under  this  act  shall  be  authorized  to  file  their 
accounts  in  the  court  whence  their  authority  was  derived,  and  upon  such 
notice  as  the  court  may  order  to  parties  interested,  or  after  being  audited, 
if  deemed  necessary,  or  by  consent  of  all  parties  interested,  such  accounts 
may  be  finally  confirmed,  and  upon  payment  of  the  balance,  as  may  be 
decreed  by  the  court,  such  accountants  may  be  fully  discharged  from  the 
trust. 

(n)  In  Blake's  Est.,  134  Pa.  240  (1890),  there  was  apparently  a  sep- 
arate account  of  only  one  fund. 


150  PURCHASE  MONEY.  §§  189, 190 

and  at  her  death  to  his  children,  the  fund  is  to  be  accounted  for 
by  the  trustees  and  not  by  the  guardian,  even  though  the  same 
persons  fill  both  offices.12 

Provisions  of  the  Act  as  to  Devolution  of  the  Purchase  Money. 
§  189.  A  sale  of  real  estate  under  judicial  process  necessarily 
and  in  fact  changes  the  nature  of  the  property  from  real  estate 
to  personal  property.13  The  act,  however,  provides  as  follows: 
"And  provided,  that  no  purchase14  or  sale15  by  authority  of  this 
act,  shall  change  the  course  of  descent  or  transmission  of  any 
property  changed  in  its  nature  by  virtue  thereof,  as  respects  per- 
sons who  are  not  of  competent  ability  to  dispose  of  it."  The  act, 
therefore,  provides,  that  where  there  is  in  fact  under  its  pro- 
visions a  change  from  real  estate  to  personal  property,  neverthe- 
less the  property  shall  be  considered  as  of  its  original  nature  for 
certain  purposes  and  as  to  certain  persons. 

Interest  of  a  Minor. 

§  190.  It  is  clear  that  where  the  minor  dies  under  twenty-one, 
after  the  sale  under  the  act,  the  proceeds  devolve  as  if  they  were 
real  estate.16  The  provisions  of  the  act  as  to  conversion  only 

(12)  Can's  Est.,  17  D.  R.  297  (1908).    See  also  McClurg's  Est.,  4  D.  R. 
655  (1895). 

(13)  This  subject  has  been  discussed.     See  article  Equitable  Conver- 
sion in  Penna.,  58  U.  of  P.  L,aw  Rev.,  p.  455. 

(14)  An  investment  in  real  estate  under  the  Act  of  April  13,  1854,  P- 
L.  368,  Sec.  2,  remains  personal  property,  see  Davis's  App.,  60  Pa.  118 
(1869);    Woodward's  App.,  38  Pa.  322   (1861). 

(15)  The  words   "lease,    mortgage  and   conveyance   on   ground   rent" 
are  omitted  from  the  act.     See  §  195,  post,  as  to  rents,  §  194,  post,  as  to 
mortgage  money,  and  §  196,  post,  as  to  conveyance  on  ground  rent. 

(16)  Holmes's  App.,   53  Pa.  339   (1867);    Eckert's  Est.,   12  Phila.  93 
(1878),  s.  c.  5  W.  N.  C.  45i,  35  L.  I.  193;    Hough's  Est.,  3  D.  R.  187 
(1893)  ;   Murray's  Est.,  234  Pa.  520  (1912).    In  Belle  v.  Mateer's  Est.,  19 
D.  R.  929  (1910),  the  minor  died  after  the  sale  under  twenty-one,  leaving 
a  husband  and  an  infant  daughter  who  died  three  weeks  later,  and  it  was 
held  that  the  proceeds  remained  real  estate  notwithstanding  the  second 
devolution,  and  were  distributed  as  the  real  estate  of  the  infant.     In 
Ray's  Est.,  24  Pa.  C.  C.  366  (1899),  s.  c.  17  Montg.  15,  48  Pitts.  L.  J.  (O.  S.) 
244,  14  York  145,  a  guardian  sold  real  estate  of  his  ward  under  the  Price 
Act;    the  minor  died  and  the  guardian  paid  the  money  to  the  minor's 
administrator  who  accounted  for  it  as  money;   the  minor  left  a  surviving 
husband  and  child;   on  distribution,  the  heirs  claimed  the  estate  as  land; 
a  judgment  creditor  of  decedent  claimed  that  it  was  personalty.     Held 


§  190     DEVOLUTION  OF  INTEREST  IN  PURCHASE  MONEY.         151 

change  the  law  in  the  case  where  the  minor  dies  after  the  sale. 
Where  he  dies  before  the  sale,  he  dies  seized  of  real  estate  and 
the  proceeds  go  to  those  entitled  to  the  same  at  the  time  of  his 
death,  and  hence  apparently  devolve  as  real  estate.  The  pro- 
visions of  the  act  in  this  respect  are  merely  declatory  of  the  ex- 
isting law.17 

that  the  estate  was  distributable  as  personalty  to  judgment  creditors  and 
heirs.  Doty,  P.  J.,  relied  on  the  circumstance  that  the  money  had  been 
paid  to  the  administrator.  This  case  is  obscurely  reported,  as  it  did  not 
appear  what  creditor  was  claiming  or  whether  the  minor  died  over  twenty- 
one.  The  payment  by  the  guardian  to  the  administrator  would  not  divest 
the  right  of  the  husband  of  the  child  who  could  follow  the  fund  into  the 
hands  of  the  administrator.  The  case  appears  to  be  open  to  objection  and 
contrary  to  the  weight  of  authority. 

"And  again,  in  the  second  proviso  to  the  7th  section,  the  language  is, 
'that  no  purchase  or  sale  by  authority  of  this  act  shall  change  the  course 
of  descent,  or  transmission  of  any  property  changed  in  its  nature,  by 
virtue  thereof  as  respects  persons  who  are  not  of  competent  ability  to 
dispose  of  it.'  This  provision  is  general,  although  it  appears  in  a  section 
relating  principally  to  the  powers  of  trustees,  guardians,  committees,  mar- 
ried women  and  corporations.  Strictly  it  is  not  a  proviso  to  anything 
preceding  it;  it  is  an  independent  provision,  which,  by  usage  in  our  legis- 
lation, is  often  introduced  by  way  of  proviso.  It  is  not  possible  to  dis- 
regard these  provisions  in  the  act,  and  declare  that  notwithstanding  the 
conversion  of  the  minor's  estate  was  complete  under  the  act  in  his  life- 
time and  at  his  death,  it  passed  as  personalty.  The  act  does  not  mean  this. 
The  sale  was  not  made  for  the  purpose  of  raising  money  for  him.  Before 
making  the  order,  the  court  were  satisfied  that  the  change  from  land  to 
money  substituted  for  the  land,  would  be  best  for  his  interest,  and  it  was 
that  which  moved  the  court  to  make  the  order.  We  must  therefore  hold 
that  this  change  did  not  change  the  character  in  which  the  substitute  is 
to  pass  to  those  entitled.  It  must  pass  as  land:  Greenawalt's  App.,  I 
Wright  95.  So  thought  the  auditor  and  court. 

"It  seems  to  me,  that  the  last  clause  in  the  second  proviso  to  the  7th  sec- 
tion, quoted  above,  is  misunderstood  by  the  learned  counsel,  if  1  under- 
stand them.  They  seem  to  read  it  as  applying  to  the  party  claiming  the 
descent,  while  it  is  quite  manifest  it  only  applies,  in  a  case  like  this  at 
least,  to  the  party  whose  property  has  been  changed  by  the  sale.  In 
other  words,  as  Mrs.  Holmes  was  competent  to  dispose  of  the  substitute 
for  the  land,  it  seems  to  be  thought  that  that  part  of  the  proviso  has  no 
application  to  the  case.  It  is  quite  certain,  however,  that  this  is  incorrect ; 
its  application  is  to  the  son  whose  estate  was  sold  while  he  was  a  minor 
and  incompetent  to  dispose  of  it.  Had  he  been  of  age,  he  might  have  dis- 
posed of  the  proceeds  as  money  and  not  land."  Thompson,  J.,  in  Holmes's 
App.,  53  Pa.  339  at  342  (1867). 

(17)  Confer  Foster's  App.,  74  Pa.  391  at  399  (1874),  which  was  a  case 


152  PURCHASE  MONEY.  §§  191, 192 

The  proceeds  of  the  sale  of  an  absolute  interest  of  a  minor  will 
be  transmitted  to  the  domciliary  guardian  notwithstanding  the 
circumstance  that  if  the  minor  dies  under  age,  the  proceeds  will 
devolve  as  real  estate  upon  persons  resident  in  the  county  where 
the  land  lay,  and  they  will  therefore  be  under  the  necessity  of 
prosecuting  their  claim  in  a  foreign  court.  The  court  will,  how- 
ever, embody  in  the  order  for  transmission  a  notice  to  the  domi- 
ciliary court  of  the  nature  of  the  fund.18 

Lunatics,  Habitual  Drunkards  and  Harried  Women. 

§  191.  No  case  has  arisen  as  to  the  devolution  of  the  pro- 
ceeds of  the  sale  of  the  interest  of  a  lunatic,  habitual  drunkard 
or  married  woman.  Since  the  act  provides  that  no  purchase  or 
sale  shall  change  the  descent  or  transmission  of  property  as  re- 
spects persons  who  are  not  of  competent  ability  to  dispose  of  it, 
it  seems  clear  that  in  these  cases  also  the  proceeds  of  the  sale 
would  devolve  as  real  estate.19 

So  far  as  married  women  are  concerned,  we  must  remember 
that  the  law  has  changed  since  the  Price  Act  has  passed,  and  now 
under  the  married  woman's  property  acts,  a  married  woman  has 
full  power  to  dispose  of  her  legal  estate.  The  question  will  there- 
for arise  whether  the  same  rule  is  to  be  applied  to  her  now  as 
would  have  been  applied  to  her  when  the  act  was  passed.  The 
disability  imposed  upon  a  married  woman,  however,  with  re- 
spect to  her  sole  and  separate  use,  still  remains,  and  in  such  case 
it  seems  as  if  the  provisions  of  the  act  should  apply. 

Effect  of  Sale  upon  Devolution  of  Proceeds  of  Owners  Sui  Juris. 

§  192.  The  law  probably  is  that  where  the  owner  of  the 
property  is  sui  juris,  the  sale  under  the  act  produces  a  conver- 
sion just  as  in  any  other  case,  the  wording  of  the  exception  being 
apparently  confined  to  the  case  of  a  minor  or  person  under  legal 

of  a  sale  of  a  decedent's  interest  in  partnership  real  estate.  See  also 
Diller  v.  Young,  2  Yeates  261  (1797).  Ferree  v.  Commonwealth,  8  S.  & 
R.  312  (1822),  where  there  was  an  order  of  sale  in  partition  under  which 
sale  was  made  in  1809,  and  the  heir  died  in  1807,  and  it  was  held  that 
the  proceeds  were  payable  as  if  real  estate. 

(18)  Gray's  Est.,  52  Pitts.  L.  J.  195   (1005).    The  case  arose  on  a  pe- 
tition by  the  domiciliary  guardian  to  have  the  fund  transmitted  to  him. 

(19)  See  Hirst's  Est,  147  Pa.  319  (1892),  semble,  that  the  sale  of  an 
interest  of  a  lunatic  will  not  produce  a  conversion. 


§§  !93>  J94  EQUITABLE  CONVERSION.  153 

disability.  The  proceeds  are  therefore  considered  as  personal  es- 
tate, and  are  not  the  subject  of  lien,  and  can  only  be  reached  by  at- 
tachment.20 

Equitable  Conversion. 

§  193.  Suppose  the  testator  directs  a  sale  in  such  terms  as 
to  effect  an  equitable  conversion  and  the  trustee  sells  the  property 
under  the  Price  Act,  and  there  is  a  minor  interested,  and  a  ques- 
tion arises  as  to  devolution  of  his  interest  if  he  dies  after  the 
sale.  The  question  is  whether  the  act  will  impress  the  character 
of  real  estate  on  the  purchase  money,  to  which  the  character  of 
personal  property  has  already  been  affixed  by  the  directions  of 
the  testator.  This  question  was  raised  but  not  decided  in  Mur- 
ray's Estate,21  and  there  does  not  seem  to  be  any  other  case  in 
which  it  has  been  referred  to. 

It  seems  clear  that  a  prohibition  of  alienation  imposed  by  a 
former  owner  of  the  title  will  not  prevent  the  court  from  direct- 
ing a  sale  under  the  provisions  of  the  act.21a  Since  the  act  ex- 
pressly provides  in  the  cases  specifically  referred  to  that  the  pro- 
ceeds of  the  sale  shall  be  considered  as  real  estate,  it  seems  that 
upon  the  same  principle  a  direction  to  convert  would  be  unavail- 
ing as  against  the  provisions  of  the  act 

Mortgage  Money. 

§  194.  A  mortgage  being  a  pledge  of  the  legal  title,  rests  on 
different  principles  because  the  money  borrowed  must  be  repaid. 
It  seems  clear  that  the  land  devolves  just  as  if  the  mortgage  had 
never  been  created,  and  that  the  burden  of  paying  it  off  falls  upon 
whoever  is  the  owner  when  the  mortgage  is  due.  It  is  therfore 
necessary  to  make  an  order  where  a  mortgage  is  created,  pro- 
viding for  an  adjustment  of  the  equities  between  the  life  tenant 

(20)  Dictum,  Penrose,  J.,  in  Homer's  Est.,  20  Pa.  C.  C.  458  (1897)  at 
460,  s.  c.  7  D.  R.  63,  15  Lane.  Law  Rev.  335.     In  Weaver's  Est.,  2  Lane. 
L.  R.  114  (1884),  the  proceeds  of  a  sale  under  the  Act  of  1853  were  dis- 
tributed as  personalty  to  the  legal  representatives  of  a  party  in  interest 
who  died  after  the  sale.     It  did  not  appear,  however,  whether  the  de- 
cedent was  a  minor;   if  so,  decision  is  open  to  objection.    The  point  was 
not  discussed. 

(21)  234  Pa.  520  (1912). 
(2ia)  See  §  38,  ante. 

II 


154  PURCHASE;  MONEY.  §§  195, 196 

and  the  remainderman,22  which  generally  contemplates  the  crea- 
tion of  a  sinking  fund  for  the  payment  of  the  mortgage  out  of 
any  increased  rentals  which  may  be  derived  from  the  land.  Since 
no  one  is  entitled  to  the  proceeds  of  the  mortgage,  the  same  being 
necessarily  spent  either  in  the  payment  of  debts  or  the  improve- 
ment of  the  land,  and  the  burden  only  of  paying  off  the  mortgage 
following  the  title,  it  seems  clear  that  no  question  of  conversion 
is  presented  in  such  a  case.23 

Bents. 

§  195.  Where  property  is  leased,  the  rents  belong  to  the  owner 
of  the  property,  and  where  the  lease  is  made  under  the  provisions 
of  the  Price  Act,  there  does  not  seem  to  be  any  reason  for  a 
different  rule.  If  a  minor  should  die  after  a  lease  has  been  made, 
the  rents  would,  of  course,  be  paid  to  the  persons  upon  whom 
the  real  estate  of  the  minor  would  devolve  because  the  property 
remains  of  the  same  nature  as  it  was  before.  There  does  not 
seem  to  be  any  reason,  therefore,  to  apply  any  particular  rule 
to  the  case  of  the  distribution  of  rentals  arising  from  a  lease 
made  the  provisions  of  the  act. 

Conveyance  on  Ground  Rent. 

§  196.  The  proceeds  of  a  sale  on  a  conveyance  on  ground  rent 
are,  it  seems,  personal  property  the  same  as  in  the  case  of  an  or- 
dinary sale,  and  therefore  subject  to  the  same  rule  as  heretofore 
noticed.  The  ground  rent,  however,  is  real  property  and  will 
devolve  as  such,  and  in  this  case  there  seems  to  be  no  exception  as 
to  the  case  of  a  minor  because  the  words  of  the  act  providing  for 
the  retention  of  the  quality  as  real  estate  apply  only  to  the  pro- 
ceeds of  the  sale,  and  a  ground  rent  reserved  cannot  in  any  sense 
be  said  to  be  the  proceeds  of  a  sale,  at  least  not  until  the  ground 
rent  is  finally  extinguished  or  sold.24 

(22)  See  §  28,  45,  ante. 

(23)  In  Smith's  Est.,  53  Pitts.  L.  J.  136  (1905),  a  mortgage  was  made 
by  a  trustee  under  order  of  the  Orphans'  Court  to  raise  money  to  con- 
struct a  building  on  the  premises.    The  property  being  subsequently  sold 
at  an  increased  price  much  greater  than  the  cost  of  the  building,  there 
was  no  detriment  to  the  remaindermen,  and  consequently  rents  which  had 
been  set  aside  as  a  sinking  fund  were   directed  to  be  paid  to  the  life 
tenants. 

(24)  See  language  of  Penrose,  J.,  in  Shephard's  Est.,  8  Pa.  C.  C.  520 
at  522  (1890);    Hirst's  Est.,  147  Pa.  319  (1892). 


§  197  TITLE  OF  THE  PURCHASER.  155 


CHAPTER  14. 
Title  of  the  Purchaser. 

Preliminary  discussion  of  provisions  of  the  act  §  107 

Act  presupposes  a  title  to  be  sold  §  198 

Provisions  as  to  title  to  be  read  in  connection  with  general  prin- 
ciples affecting  Orphans'  Court  sales  §  199 

Preliminary  Discussion  of  the  Provisions  of  the  Act. 

§  197.  The  act  provides  that  the  title  of  the  purchaser  under 
such  sale,  mortgage,  conveyance  on  ground  rent  shall  be  in  fee 
simple,  indefeasible  by  any  person  having  a  present  or  expectant 
interest  therein,  and  unprejudiced  by  any  error  in  the  proceedings, 
and  that  by  a  public  sale  the  premises  shall  be  discharged  from  N 
all  liens.  The  provision  is  given  in  the  note.1 

It  is  to  be  observed  that  this  clause  only  applies  to  a  sale,  mort- 
gage and  conveyance  on  ground  rent,  and  omits  any  provision 
as  to  the  other  disposition  of  the  title  authorized,  to-wit:  ex- 
change, lease,  partition,  adjusting  and  squaring  lines,  releasing 
a  right  of  way  over  adjoining  lands.  In  the  case  of  a  lease, 
of  course  there  is  not  the  same  necessity  for  such  a  provision. 
A  lessee,  for  instance,  would  not  be  affected  by  liens.  In  the 
other  cases,  there  is,  however,  as  much  reason  to  protect  the 
title  acquired  under  the  proceedings.  No  reason  has  been  as- 
signed for  this  omission  from  the  act. 

These  clauses  must  be  read  in  connection  with  and  in  sub- 
ordination to  the  other  provisions  of  the  act.  They  do  not 
mean,  although  standing  by  themselves  they  might  be  so  con- 
strued, that  the  title  is  good  against  the  world,  but  that  the  title 
is  good  as  against  the  persons  having  an  interest  under  the  cir- 
cumstances prescribed  by  the  act,  and  whose  interests  are  divested 
by  the  sale,  etc.,  that  is  to  say,  any  person  under  any  of  the 
disabilities  mentioned  in  the  act  will  be  barred  by  appropriate  pro- 

(i)  Sec.  5.  That  the  title  of  purchasers  under  all  such  sales,  mort- 
gages, or  conveyances  upon  ground  rent,  shall  be  a  fee  simple  title,  and 
indefeasible  by  any  party  or  persons  having  a  present  or  expectant  interest 
in  the  premises,  and  be  unprejudiced  by  any  error  in  the  proceedings  of 
the  court,  and  by  every  such  public  sale  the  premises  sold  shall  be  dis- 
charged from  all  liens. 


156  TITLE  OF  THE  PURCHASER.  §  198 

ceedings,  and  any  person  having  an  interest  arising  out  of  any 
of  the  defects  in  title  mentioned  in  the  act  will  in  like  manner 
be  barred.  Where,  however,  the  proceedings  cannot  be  brought 
within  any  of  the  cases  provided  for  in  the  act,  the  court  has 
no  jurisdiction,  its  decree  is  void  and  confers  no  title,  and  the 
purchaser  can  be  ejected  from  the  premises  by  a  party  having 
the  real  interest.2  The  title  is  indefeasible  only  as  against  those 
persons  who  are  within  the  divesting  words  of  the  act.  As  to 
all  others,  the  proceedings  under  the  act  are  null  and  void. 

The  indefeasibility  as  to  such  persons  depends  on  the  validity 
of  the  act  in  divesting  their  interests,  and  the  validity  of  the  act 
in  this  respect  depends  on  certain  general  principles  of  consti- 
tutional law  and  public  policy,  which  we  have  already  referred  to.2a 

The  act  means  that  where  the  title  vests  under  a  will  or  deed, 
that  it  is  indefeasible  by  those  claiming  under  the  will  or  deed, 
and  where  the  title  descends  under  the  intestate  laws,  that  it  is 
indefeasible  against  those  claiming  under  the  decedent,  and  where 
there  is  an  inherent  defect  in  the  title,  as  minority,  lunacy,  en- 
tails, that  the  title  is  cured  of  the  defect. 

Act  Presupposes  a  Title  to  be  Sold. 

§  198.  The  Act  of  1853  presupposes  a  title  to  be  sold,  and 
when  there  is  any  controversy  as  to  the  existence  of  or  the  valid- 
ity of  the  title,  the  act  cannot  be  invoked  to  settle  the  controversy. 

In  Hower's  Appeal,3  the  administrator  petitioned  for  confirma- 
tion of  a  private  sale  made  by  the  heirs  because  the  estate  was 
subject  to  the  lien  of  judgments  and  other  debts  not  of  record. 
The  petition  was  answered  by  parties  claiming  an  interest  in  the 
land  hostile  to  the  intestate,  and  as  there  was,  therefore,  a  dis- 
pute as  to  the  title,  the  court  declined  to  ratify  the  sale.4 

In  Burke's  Estate,5  there  was  a  petition  for  the  sale  of  minor's 

(2)  See  Chapter  16  on  Collateral  Attack. 
(2a)  See  introduction.    See  §  n,  ante. 

(3)  55  Pa.  337  (1867),  as  to  the  error  in  par.  I  of  the  syllabus,  see  § 
117,  ante. 

(4)  Where  there  is  a  doubt  as  to  the  title  so  that  the  property  might 
be  sacrificed,  the  court  will  upon  petition  vacate  the  order  of  sale,  Moore's 
Est.,  9  Phila.  326  (1873),  s.  c.  30  I,.  I.  176,  5  Leg.  Gaz.  165;    Bridesburg 
Land  Co.'s  Pet.,  7  Phila.  436  (1870),  s.  c.  27  L.  I.  317.    See  §  222,  post,  on 
title  passed  by  the  sale. 

(5)  15  Pa.  C.  C.  9  (1894),  s.  c.  3  D.  R.  384. 


§  199  GENERAL  PRINCIPLES  OF  ORPHANS'  COURT  SALES.      157 

interest,  and  the  court  said  that  the  question  whether  the  title 
of  the  minor  was  good  or  bad  was  immaterial  to  be  considered 
in  the  proceedings,  that  it  was  a  question  for  the  purchaser  to 
consider. 

The  language  of  Penrose,  J.,  in  Corr's  Est.,6  that  the  act  con- 
fers authority  to  decide  every  question,  including  that  of  title, 
affecting  the  rights  of  the  parties  having  a  present  or  expectant 
interest,  is  perhaps  too  broad  and  to  be  confined  to  the  question 
of  determining  who  have  an  interest  and  are  to  be  joined.7 

Provisions  of  the  Act  to  be  Read  in  Connection  with  General  Principles 
Applicable  to  Orphans'  Court  Sales. 

§  199.  These  clauses  in  the  act  are,  to  a  certain  extent,  merely 
declaratory  of  the  existing  law  as  to  Orphans'  Court  sales,  al- 
though they  should  undoubtedly  be  inserted  in  the  averments  of 
every  petition  and  the  provisions  of  every  decree  under  the  act. 

While  the  same  principles  apply  to  a  mortgage  and  a  conveyance 
on  ground  rent,  it  must  be  remembered  that  they  are  only  a  species 
of  alienation  and  governed  by  the  same  principles.  Few  cases 
have  arisen  as  to  them,  and  our  reference  to  the  cases  will  there- 
fore be  almost  exclusively  to  the  cases  of  a  sale.  Strictly  speak- 
ing, there  cannot  be  a  title  under  the  proceedings  until  the  sale 
is  confirmed,  the  deed  delivered,  and  the  purchase  money  paid.8 
The  title  of  the  purchaser  may  be  drawn  in  question  either  by 
proceedings  to  set  aside  the  sale  or  in  a  collateral  proceeding. 
Until  the  title  vests  in  the  purchaser,  all  subsequent  proceedings 
may  be  attacked  on  various  grounds  by  the  purchaser  or  any 
party  interested.  The  true  bearing  of  the  provisions  will  be 
more  apparent  if  we  refer  to  some  decisions  on  Orphans'  Court 
sales  in  general  in  addition  to  those  arising  strictly  under  the  act. 

(6)  29  Pa.  C.  C.  276  at  277,  12  D.  R.  788  (1903). 

(7)  Confer,  Kline's  App.,  39  Pa.  463   (1861),  where  the  property  sold 
for  the  payment  of  debts  was  subject  to  a  resulting  trust  but  nevertheless 
the  sale  was  confirmed  as  the  sale  was  of  the  title  of  the  decedent,  and 
the  cestui  que  trust  could  pursue  his  remedy  against  the  purchaser  at  the 
sale.     Objection  was  made  by  the  cestui  que  trust  and  not  by  the  pur- 
chaser, the  latter  asking  to  have  the  sale  confirmed.    See  §  222,  post,  as  to 
title  passed  by  the  sale. 

(8)  See  §  225,  post. 


158  ORPHANS'  COURT  SALES. 

CHAPTER  15. 

Orphans'  Court  Sales. 

Preliminary    §  200 

Nature  of  Orphans'  Court  sales  §  201 

Confirmation  of  sale    §  202 

Jurisdiction  of  the  Common  Pleas  over  Orphans'  Court  sales  ...  §203 

Sales  under  a  power  to  be  distinguished  §  204 

Proceedings  for  a  sale  §  205 

Order  of  sale  controls  subsequent  proceedings  §  206 

Method  of  objecting  to  the  sale  §  207 

Where  court  has  no  jurisdiction   §  208 

Dicta  as  to  Orphans'  Court  sales  §  209 

Statute  of  frauds  §  210 

Price  of  the  sale 

Preliminary.     Must  be  adequate   §211 

Setting  aside  for  inadequacy  §  212 

Security   for  a  higher  bid.     Distinction  between  public   and 

private  sales  §  213 

Decree  of  confirmation  conclusive  as  to  price  §  214 

Fraud   §  215 

Parties  who  may  object  to  the  sale §  216 

The  purchaser 

Preliminary    §  217 

Refusal  to  carry  out  terms  of  the  sale  §  218 

Purchaser  should  defend  by  objecting  to  confirmation   §219 

Liability  of  the  purchaser  after  confirmation   §  220 

Liability  after  deed  delivered  and  purchase  money  paid §  221 

Title  passed  by  the  sale  , . . .  §  222 

Purchaser  obtaining  possession   §  223 

Rights  of  the  various  parties  pending  completion  of  the  sale 

Preliminary    §  224 

Title  of  the  heir  or  devisee  §  225 

Incidence  of  rights  and  liabilities  between  parties  §  226 

Destruction  of  buildings  by  fire  §  227 

Apportionment  of  interest  on  encumbrances   §  228 

Title  of  the  purchaser 

Preliminary    §  229 

Judgments  against  §  230 

Rights  against  third  parties   §  231 

Devolution    §  232 

Alienation   §  233 

Deed 

Who  is  to  execute   §  234 

Endorsing  decree  on  deed  §  235 

Acknowledgment  and  recording    §  236 

Must  conform  to  the  decree  of  the  court  §  237 


§§  200,  20i,  202  NATURE  OF  ORPHANS'  COURT  SALES.  159 

Preliminary. 

§  200.  The  jurisdiction  under  the  Price  Act  is  most  fre- 
quently invoked  for  the  authorization  of  a  sale  and  generally  by 
proceedings  in  the  Orphans'  Court.  In  the  exercise  of  this 
jurisdiction,  the  court  will  follow  the  law  generally  applicable  in 
such  sales,  and  it  is  therefore  useful  to  point  out  some  of  the 
principles  governing  Orphans'  Court  sales,  and  refer  to  some  of 
the  cases  decided  under  other  acts,  but  which  are  nevertheless 
in  point  when  the  proceeding  is  under  the  Price  Act. 

Nature  of  Orphans'   Court  Sale. 

§  201.  An  Orphans'  Court  sale,  it  must  be  remembered,  is  a 
sale  by  the  court,  the  party  making  the  sale  and  delivering  the 
deed  being  merely  an  agent,1  and  at  all  times  subject  to  the  con- 
trol of  the  court  which,  in  the  exercise  of  its  jurisdiction  as  a 
court  of  equity2  will  govern  the  proceedings  to  the  end  that  jus- 
tice may  be  done  to  all  parties,  and  at  the  same  time  the  various 
statutory  requirements  complied  with.  Indeed  most  of  the  juris- 
diction conferred  by  the  act  is  merely  statutory  enactment  of  the 
equitable  jurisdiction  generally  exercised  by  the  chancellor,  con- 
sequently the  general  principles  of  equity  will  prevail. 

Confirmation  of  gale. 

§  202.  The  confirmation  of  the  sale  is  the  final  act  of  the 
court  accepting  the  offer  of  the  purchaser,  and  is  therefore  nec- 
essary to  the  validity  of  the  title  in  all  cases.  Formerly,  under 
some  of  the  old  acts,  it  was  held  that  a  sale  would  be  valid  even 
without  such  confirmation  after  fifteen  years.3  In  such  a  case 
now  the  court  would  probably  proceed  to  confirm  the  sale  with 
notice  to  all  parties,  and  if  the  case  arose  in  a  collateral  proceed- 
ing, suspend  judgment  until  the  sale  could  be  confirmed.4 

(1)  See  remarks  of  Smith,  P.  J.,  in  Ross's  Est.,  18  D.  R.  429  (1908) 
at  431- 

(2)  See  remarks  of  L,owrie,  J.,  in  Loomis  v.  Loomis,  27  Pa.  233  at 
236  (1856),  "And  it  (Orphans'  Court)  sits  as  a  court  of  equity  and  in  a 
rude  way  uses  the  forms  of  a  court  of  equity  when  it  orders  land  to  be 
sold  for  the  payment  of  debts." 

(3)  Watt  v.  Scott,  3  Watts  79  (1834).    Ejectment. 

(4)  See  Chap.  16  on  Collateral  Attack. 


160  ORPHANS'  COURT  SALES.  §  203 

Jurisdiction  of  the  Common  Fleas  Over  Orphans'  Court  Sales. 

§  203.  It  is  clear  under  the  statutes  authorizing  the  Orphans' 
Court  to  mak'e  sales  of  real  estate,  that  the  sole  jurisdiction  to 
make  the  sale  is  in  the  Orphans'  Court  and  that  the  Common 
Pleas  have  no  jurisdiction  over  Orphans'  Court  sales.  They 
may  not  entertain  a  bill  to  restrain  an  executor  from  selling  under 
order  of  the  Orphans'  Court.5  The  Common  Pleas  may,  how- 
ever, restrain  proceedings  on  a  mortgage  on  the  ground  that  the 
proceedings  in  the  Orphans'  Court  authorizing  the  mortgage  were 
invalid.8  The  decree  of  the  Orphans'  Court  confirming  the  sale 
is  conclusive  on  the  Common  Pleas,7  which  may,  after  the  sale 
has  been  confirmed,  entertain  a  bill  in  equity  for  specific  per- 
formance,8 or  take  jurisdiction  of  an  action  of  assumpsit  to  re- 
cover the  purchase  money  or  render  a  decision  upon  a  case  stated 
to  determine  the  marketability  of  the  title.10  The  Orphans'  Court 
may  under  its  equity  powers  make  a  decree  of  specific  perform- 
ance against  the  purchaser  at  the  sale.11  This  jurisdiction,  how- 
ever, is  limited  to  the  cases  where  the  court  has  jurisdiction. 
Thus,  if  there  are  undivided  interests  in  the  property,  and  some 
of  them  are  under  age,  and  as  to  those  a  decree  confirming  the 
sale  is  made  in  the  Orphans'  Court,  the  Orphans'  Court  can  only 
enforce  specific  performance  of  the  contract  of  sale  by  the  guard- 
ians, and  if,  therefore,  the  other  undivided  interests  who  are  sui 
juris  have  joined  in  the  contract  of  sale  the  remedy  against  the 
purchaser  must  be  pursued  in  the  Common  Pleas,  as  a  remedy  is 
joint  and  cannot  be  severed  by  proceedings  in  the  Orphans'  Court 
as  to  some  and  proceedings  in  the  Common  Pleas  as  to  others.12 

(5)  Loomis  v.  Loomis,  27  Pa.  233   (1856).     The  Common  Pleas  may, 
however,  entertain  a  bill  in  equity  as  to  a  sale  by  an  executor  under  a 
power  in  a  will,  McClane  v.  McClane,  207  Pa.  465   (1904). 

(6)  Morgan's  App.,  no  Pa.  271   (1885). 

(7)  Mercer  Home,  Fisher's  App.,  162  Pa.  232  (1894). 

(8)  Brock  v.  Steel  Co.,  203  Pa.  249  (1902).    Common  Pleas,  however, 
has  no  jurisdiction  for  specific  performance  where  the  sale  has  not  been 
confirmed,   Mussleman's   App.,   65    Pa.   480    (1870) ;     Bickley's   Adm.   v. 
Biddle,  33  Pa.  276  (1859). 

(9)  See  §  220,  post. 

(10)  See  §  220,  post. 

( 1 1 )  See  §  220,  post. 

(12)  Claypoole's  Est,  15  Pa.  C.  C.  283  (1894),  s.  c.  3  D.  R.  455. 


§§  204, 205  SALES  UNDER  A  POWER  DISTINGUISHED.  161 

Sales  Under  a  Power  to  be  Distinguished. 

§  204.  Where  the  sale  is  made  by  an  executor  or  trustee  under 
a  power  in  the  instrument  creating  the  trust,  the  Orphans'  Court, 
in  the  exercise  of  its  general  equity  jurisdiction,  may  control  the 
sale.  The  case,  however,  is  not  that  of  an  Orphans'  Court  sale 
because  the  sale  is  made  by  the  executor  or  trustee  and  not  by 
the  court.  These  casesj*  therefore,  are  to  be  distinguished  and 
excluded  from  the  discussion  although  sometimes  governed  by 
the  same  principles.13 

Proceedings  for  Sale. 

§  205.  Proceedings  in  the  Orphans'  Court  for  the  sale  of  real 
estate  fall  into  two  classes:  (i)  those  where  there  is  an  appli- 
cation for  an  order  of  sale  upon  which  an  appropriate  order  is 
made  followed  by  a  sale,  a  return  thereof  to  the  court,  confirma- 
tion of  the  sale  followed  by  execution  and  delivery  of  the  deed 
and  payment  of  the  purchase  money ;  (2)  Where  the  sale  is  made 
subject  to  the  approval  of  the  Orphans'  Court  and  petition  made 
for  the  confirmation  of  the  sale  already  made,  followed  by  decree 
of  confirmation  and  consummation  of  the  sale,  as  in  the  other 
cases.  Either  course  may  be  adopted.  The  second  method  is 
the  modern  and  more  direct  proceeding,  and  applies  as  well  to 
a  public  as  a  private  sale  and  secures  the  rights  of  all  parties. 
All  the  questions  which  can  be  raised  on  the  petition  for  an  order 
or  a  return  of  sale  can  be  raised  as  well  on  a  petition  for  con- 
firmation of  a  sale  already  made.  Cases  may  arise,  however, 
where  it  is  advisable  to  petition  for  a  preliminary  order,  as  where 
the  parties  are  not  agreed,  or  there  is  some  doubt  as  to  the  pro- 
priety of  the  sale.  These  questions  can  be  settled  on  the  presen- 

(13)  The  following  are  cases  of  sale  under  a  power:  Cobleigh's  Est, 
23  Super.  Ct.  271  (1903)  ;  Hancock's  Est,  9  D.  R.  231  (1900),  s.  c.  23  Pa. 
C.  C.  592;  Miller's  App.,  84  Pa.  391  (1877);  McClane  v.  McClane,  207 
Pa.  465  (1904);  Reel's  Pet.,  32  Pa.  C.  C.  200  (1906);  Morgan's  Est,  9 
Pa.  C.  C.  119  (1890);  Rigg  v.  Schweitzer,  170  Pa.  549  (1895),  s.  c.  37 
W.  N.  C.  152,  was  a  case  of  a  bill  in  equity  in  the  Common  Pleas  to 
declare  void  a  sale  by  an  executor  under  a  power  on  the  ground  that  the 
executor  had  really  bid  on  the  property  through  an  agent.  The  bill  was 
dismissed  as  the  grounds  of  allegation  were  not  proved.  Handbest's  Est., 
15  D.  R.  234  (1906);  Brittain's  Est,  28  Super.  Ct.  144  (1905);  Barndt's 
Est.,  23  D.  R.  226  (1914). 


1 62  ORPHANS'  COURT  SALES.  §§  206, 207 

\J      tation  of  the  petition  and  some  unnecessary  expense  perhaps 
avoided.14 

Order  of  Sale  Controls  Subsequent  Proceedings. 

§  206.  In  a  case  of  a  preliminary  order  for  sale,  the  rights 
of  the  purchaser  and  the  party  making  the  sale  are  determined 
by  the  order  of  sale  made  by  the  court,  which  may  not  be  varied 
without  the  consent  of  the  court,  but  where  there  has  been  a  vari- 
ance in  the  subsequent  proceedings,  it  will  be  cured  by  the  decree 
confirming  the  sale.  Any  variance  of  the  terms  in  the  advertise- 
ment is  unauthorized  and  will  be  of  no  effect  except  that  the  court 
may,  in  confirming  the  return  of  the  sale  in  a  proper  case,  accept 
the  terms  of  the  advertisement.15 

Method  of  Objecting  to  the  Sale. 

§  207.  The  parties  interested  may  object  to  the  order  of  sale, 
file  exceptions  to  the  return,  object  to  the  confirmation,  file  excep- 

(14)  As  to  the  jurisdiction  of  the  Orphans'  Court  to  ratify  afterwards 
that  which  it  might  have  confirmed  in  advance,  see  §  21,  ante. 

(15)  In  Jayne's  Est,  2  W.  N.  C.  536  (1876),  there  was  a  petition  of  a 
purchaser  to  set  aside  the  sale.    The  order  of  sale  decreed  that  the  prem- 
ises should  be  sold  subject  to  two  certain  mortgages.    The  advertisement 
was  that  the  mortgages  might  remain.    It  was  held  that  the  purchaser  was 
not  entitled  to  relief  as  it  was  his  duty  to  look  to  the  order  of  sale  and 
not  to  the  advertisement. 

In  Jacobs'  App.,  23  Pa.  477  (1854),  the  administrator  varied  the  terms 
of  the  sale  prescribed  by  the  Orphans'  Court  and  the  sale  was  confirmed  as 
altered.  The  court  said,  however,  that  the  confirmation  would  cure  the 
variation,  and  then  decided  the  case  on  the  ground  that  the  sale  conferred 
no  title  because  of  the  altered  terms.  In  Backenstoss  v.  Stahler's  Admrs., 
33  Pa.  251  (1859),  there  was  an  administrator's  sale  in  partition,  and  the 
conditions  of  the  sale  were  that  all  grain  except  a  certain  amount  should 
remain  on  the  ground  and  be  the  property  of  the  vendee.  A  verbal  an- 
nouncement was  made  at  the  sale  that  all  the  grain  except  every  fourth 
bushel  was  reserved.  The  deed  was  made  without  reserving  the  growing 
crops,  and  the  administrator  brought  trover  against  the  purchaser  and  the 
court  held  that  if  the  purchaser  agreed  to  the  verbal  reservations,  he 
was  bound  and  judgment  for  the  plaintiff  was  confirmed,  going  on  the 
ground  that  the  order  of  the  court  related  exclusively  to  realty,  and  the 
reservation  was  to  personalty  and  therefore  outside  the  jurisdiction  of 
the  Orphans'  Court  order. 

In  Randolph's  App.,  5  Pa.  242  (1847),  administrator  altered  the  con- 
ditions of  sale  by  agreeing  to  continue  in  force  a  lien  which  would  other- 
wise have  been  discharged  by  the  sale. 


§§  208, 209,  210  JURISDICTION.    STATUTE  of  FRAUDS.  163 

tions  thereto,  proceed  to  set  aside  a  confirmation  already  made, 
and  in  exceptional  cases  proceed  to  set  aside  the  sale  even  after 
the  delivery  of  the  deed  and  payment  of  the  purchase  money.  The 
rights  of  the  different  parties  at  various  stages  of  the  proceed- 
ings must  be  considered.     The  parties  interested  are:    the  pur-\ 
chaser,  the  party  making  the  sale,  the  persons  interested  in  the  N 
estate,  the  title  of  which  is  sold,  and  the  creditors,  if  any. 

Where  Court  has  no  Jurisdiction. 

§  208.  Where  the  court  has  no  jurisdiction  to  make  the  sale, 
the  proceedings  may  be  dismissed  at  any  time  on  that  circum- 
stance being  made  to  appear  by  proper  proceedings  by  any  party 
in  interest.16 

Dicta  as  to  Orphans'  Court  Sales. 

§  209.  Where  there  is  a  controversy  after  the  sale  is  com- 
pleted over  the  proceeds  of  the  sale,  any  remarks  of  the  court 
as  to  the  validity  of  the  sale  seem  to  be  dicta,  as  the  parties  are 
estopped  to  question  this  validity  so  long  as  they  claim  the  pur- 
chase money,  and  anyone  not  claiming  can  proceed  to  set  aside 
the  sale  notwithstanding  the  remarks  of  the  court.17 

Statute  of  Frauds. 
§  210.     The  statute  of  frauds  does  not  apply  to  an  Orphans' 

(16)  In  Butt's  Est.,  20  Lane.  L.  R.  41  (1902),  a  rule  for  an  alias  order  of 
sale  for  the  payment  of  debts  was  refused  as  the  lien  thereof  had  expired. 
In  Kurtz's  Est.,  16  Lane.  L.  R.  205  (1899),  a  petition,  to  vacate  an  order 
to  mortgage  real  estate  for  payment  of  debts  was  sustained  and  the  order 
revoked  and  petition  dismissed,  as  the  lien  of  debts   had   expired.     In 
Souder's  Est.,  20  Lane.  L.  R.  231    (1903),  exceptions  were  filed  to  pro- 
ceedings for   a   sale   of  real   estate,   which   were   dismissed   because   not 
supported  by  affidavit  or  proof  and  not  filed  until  after  sale  had  been 
confirmed.      The    administrator   had    petitioned    for   a   sale    for    payment 
of   debts,   the    administrator   having   been   appointed   in   Chester   County. 
The  court  said  that  the  Orphans'  Court  of  Chester  County  had  juris- 
diction of  the  account  and  alone  had  power  to  determine  the  necessity 
of  the  sale,  and  that  question  could  not  be  inquired  into  by  the  Court  of 
Lancaster  County  where  the  land  lay,  and  which  must  order  a  sale  ac- 
cording to  the  decree  of  the  court  of  Chester  County. 

(17)  A  few  of  these  cases  are  as  follows:   Funston's  Est.,  24  Pa.  C.  C. 
135  (1900)  ;   Yard's  Est.,  17  Phila.  436  (1885),  s.  c.  42  L.  I.  17,  15  W.  N. 
C.  422;    Crosson's  Est.,  6  Pa.  C.  C.  14  (1888);    Bindley's  App.,  69  Pa. 
295  (1872). 


164  ORPHANS'  COURT  SAI.ES.  §§  211,212 

Court  sale,  and  the  purchaser  cannot  set  up  in  defence  that  the 
contract  was  not  in  writing  when  sued  for  the  purchase  money.18 

Sale  Must  be  for  an  Adequate  Price. 

§  211.  Since  the  court  makes  the  sale,  it  obviously  has  power 
to  determine  the  price  at  which  the  property  shall  be  sold,  and 
to  accept  or  reject  any  offers  which  are  made.  The  controlling 
principle  is  that  the  price  must  be  adequate,  that  is,  must  repre- 
sent as  nearly  as  possible,  under  the  circumstances,  the  full  value 
of  the  property.  The  court  has  in  the  exercise  of  its  equitable 
jurisdiction  power  to  make  such  orders  and  decrees  as  may  be 
necessary  to  secure  a  sale  at  an  adequate  price. 

Setting  Aside  for  Inadequacy  of  Price. 

§  212.  Although  there  has  been  some  doubt  as  to  the  power 
of  the  Orphans'  Court  to  set  aside  a  sale  on  the  ground  of  in- 
adequacy of  price  alone,19  it  is  now  clear  that  wherever  it  ap- 
pears that  the  price  is  inadequate,  the  court  will  refuse  to  con- 
firm the  return,  refuse  to  confirm  the  sale,  or  where  the  sale  has 
been  confirmed,  open  the  confirmation  and  set  aside  the  sale, 
provided  the  application  is  made  in  time.20 

(18)  King  v.  Gunnison,  4  Pa.  171   (1846).    Although  this  case  is  gen- 
erally cited  as  an  authority  for  this  proposition,  it  does  not  appear  that 
the  defendant  set  up  the  point  in  defence. 

(19)  See  Ryan's  Est.,  8  Pitts.  I,.  J.  25  (1860)  ;  Cromrath's  Est,  I  Wood 
103  (1862)  ;   Ringler's  Est.,  i  Wood  214  (1864). 

(20)  In  these  cases,  before  sale  was  confirmed,  the  court  set  it  aside 
and  ordered  another  sale:    Hamilton's  Est.,  51   Pa.  58   (1865).     In  this 
case  there  was  an  administrator's  sale  in  partition.     The  administrators 
and  heirs  made  an  arrangement  for  a  higher  bid,  and  the  administrator 
in  his  return  set  out  that  the  property  could  be  sold  for  a  higher  price. 
One  of  the  heirs  formally  notified  the  administrator  that  the  price  was 
too  low  and  offered  more.     The  court  set  aside  the  sale  without  notice 
to  the  purchaser  and  on  an  alias  order  the  property  was  sold  to  another 
party  at  a  higher  price.    The  first  purchaser  petitioned  to  have  the  second 
sale  set  aside  and  the  first  sale  confirmed.     The  petition  was  dismissed 
which  was  affirmed  on  appeal  without  deciding  the  right  of  a  successful 
bidder  to  appeal  from  a  decree  of  the  court  setting  aside  the  sale  and 
ordering  another  one.    The  purchaser  stood  in  no  relation  of  confidence 
and  was  not  entitled  to  raise  the  question  of  lack  of  notice.    In  McCar- 
roll's  Est.,  2  W.  N.  C.  248  (1876),  there  was  a  petition  by  administrator 
to  set  aside  a  sale,  setting  out  that  since  the  sale  a  higher  offer  had  been 
made.    The  court  made  a  decree  that  upon  the  offeror  giving  security  to 


§  213  PRICK  OF  THE  SALE.  165 

Security  for  a  Higher  Bid  on  He-Sale.     Distinction  Between  Public  and 

Priyate  Sales. 

§  213.     The  court  may,  however,  in  order  to  discourage  friv- 
olous objections,  require  some  assurance  that  the  property  will 

bid  for  and  purchase  the  property  at  not  less  than  a  certain  price,  the  sale 
would  be  set  aside  and  an  alias  order  of  sale  issued.  In  Brown's  App., 
68  Pa.  53  (1871),  there  was  a  private  sale  by  an  executor  and  trustee 
under  the  Price  Act  for  $5,250.  Petition  one  month  later  filed  by  executor 
and  trustee  setting  out  that  an  offer  of  $6,400  had  been  made,  and  that 
sale  had  not  been  consummated.  A  new  order  of  sale  was  made  authorizing 
the  acceptance  of  the  new  bid  on  terms  of  reimbursing  the  former  vendee 
for  expenses  incurred  in  becoming  a  purchaser.  In  Grew's  Est.,  14  D.  R. 
224  (1905),  s.  c.  31  Pa.  C.  C.  530,  6  Lack.  Jur.  166,  there  was  a  petition 
by  an  heir  to  set  aside  sale  in  partition.  At  a  former  sale  there  was  a 
bid  of  $425.,  subject  to  a  gro.und  rent,  but  no  sale  was  effected  and  on  the 
second  sale  the  property  was  sold  for  $100.  The  petition  was  granted, 
bond  having  been  filed.  In  Herr's  Est.,  12  Pa.  C.  C.  622  (1893),  excep- 
tions to  confirmation  of  administrator's  sale  were  filed  by  an  heir  on  the 
ground  of  inadequacy  of  price.  A  bond  was  filed  conditioned  for  an  ad- 
vance bid  of  10%  on  re-sale.  Sale  was  set  aside  and  re-sale  ordered. 
In  McBride's  Est,  23  Pa.  C.  C.  544  (1900),  s.  c.  9  D.  R.  216,  a  petition 
for  re-sale  was  filed  apparently  before  confirmation,  accompanied  by  a 
bond  of  proposed  purchaser  conditioned  for  a  bid  of  over  10%  ad- 
vance. It  did  not  appear  who  filed  the  petition.  Re-sale  was  ordered. 
The  court  may  refuse  to  confirm  a  particular  sale.  Thus,  in  Allen's  Est., 
ii  Phila.  48  (1875),  s.  c.  32  L.  I.  417,  where  a  sale  in  partition  had  been 
made  and  the  purchaser  presented  a  petition  to  confirm  the  sale,  the  court 
refused  to  confirm  and  made  an  order  and  decree  setting  aside  the  sale, 
as  it  appeared  that  the  sale  was  made  at  a  grossly  inadequate  price.  In 
Breil's  App.,  24  Pa.  511  (1855),  an  administrator's  sale  had  been  made  and 
no  terms  of  sale  prescribed  in  the  order.  A  decree  was  made  confirming 
the  sale  on  certain  terms,  although  it  appeared  that  the  property  was 
sold  at  20%  of  its  value.  On  appeal,  the  confirmation  was  set  aside, 
the  Supreme  Court  saying  that  the  court  could  have  approved  the  terms 
nunc  pro  tune  but  could  disapprove  and  refuse  to  confirm  for  that  reason 
alone.  As  to  the  10%  in  Phila.  County,  see  McRee's  Est.,  6  Phila.  75 
(1865),  22  L.  I.  389,  sale  under  proceedings  in  partition.  Petition  of  pur- 
chaser fofr  order  on  trustee  to  execute  and  deliver  deed  granted,  although 
the  property  had  increased  in  value  since  the  sale ;  Scott's  Est.,  4  Phila. 
178  (1860),  27  L.  I.  4-  In  Murphy's  Est.,  15  Phila.  530  (1882),  39  L.  L 
118,  a  petition  was  presented  by  a  creditor  to  vacate  decree  of  confirmation 
of  sale  of  real  estate,  which  petition  was  dismissed  on  the  ground  that  the 
sum  named  by  the  petitioner  as  the  purchase  price  was  not  in  advance  of 
ten  per  cent,  over  the  former  sale.  Breese's  Est,  2  Kulp  62  (1875),  sale 
set  aside,  bond  filed.  Metz's  Est.,  14  York  136  (1900)  ;  Ranck's  Est.,  n 
Lane.  L.  R.  233  (1893),  bond  not  in  proper  form.  In  these  cases  the  court 


166  ORPHANS'  COURT  SAI^S.  §  213 

bring  more  at  the  second  sale,  and  the  practice  generally  it  to  re- 
quire security  that  the  property  will  bring  an  advance  of  at  least 
ten  per  cent,  upon  a  resale.21  This  principle  is  equally  applicable 
where  the  objection  be  made  before  or  after  the  sale  is  confirmed. 
The  purchaser  at  the  sale  which  is  set  aside  should  be  protected." 
A  distinction  is  to  be  drawn  here  between  the  case  of  a  public 
sale  and  the  case  of  a  private  sale.  Where  a  public  sale  is  set 
aside  and  a  new  public  sale  ordered,  it  is  obviously  necessary  to 
have  some  security  that  the  bid  will  be  forthcoming  at  the  next 
sale,  otherwise  the  property  might  bring  a  sum  less  than  it 
brought  at  the  first  sale.  Where,  however,  the  sale  is  private, 
and  the  application  is  for  confirmation  of  that  sale,  and  an  offer 
is  made  of  a  higher  price  for  the  property,  the  same  considera- 
tions do  not  apply.  Here  the  offer  may  be  accepted  at  once  if 
it  is  deemed  advisable,  and  there  seems  to  be  no  occasion  for  re- 
quiring any  security.  In  such  a  case  the  court  can  make  a  decree 

refused  to  interfere  on  the  ground  that  the  price  was  inadequate:  Miller's 
Est,  5  Kulp  205  (1889)  ;  Wright's  Est,  2  Kulp  442  (1878),  exceptions  to 
sale  of  real  estate;  no  offer  of  a  larger  price.  Forney's  Est.,  3  Kulp  29 
(1883),  exceptions  to  return  of  sale  dismissed  because  exceptant  failed  to 
give  security  to  pay  the  costs  in  case  the  property  should  bring  less 
at  a  re-sale.  In  Carroll's  Est,  2  Kulp  37  (1882),  an  application  to  set 
aside  a  sale  was  made  (it  did  not  appear  by  whom),  which  was  refused,  as 
there  was  no  offer  to  return  the  deposit  money  or  to  bid  more  at  a  re- 
sale, and  no  security  tendered  to  cover  costs.  In  Funck's  Est.,  16  Super. 
C.  434  (1901),  there  was  a  petition  of  a  trustee  to  sell  land,  joined  in  by 
all  the  heirs  except  two.  The  court  made  the  decree  awarding  the  sale. 
The  objecting  ones  also  made  an  offer  to  buy  the  property  on  certain 
terms  which  the  court  below  rejected.  It  was  held  that  the  order  of  the 
court  below  would  not  be  reviewed  on  appeal,  as  there  was  no  abuse  of 
discretion.  In  Clark's  Est.,  38  Pa.  C.  C.  302  (1911),  the  court  found  as  a 
fact  that  the  sale  was  made  at  a  proper  price  ($2,300),  mere  offer  of  an  un- 
successful bidder  to  bid  $500  more  on  re-sale.  Application  was  refused; 
and  the  first  sale  confirmed.  In  Snyder's  Est.,  29  Pa.  C.  C.  465  (1904), 
7  Dauphin  Co.  287,  reported  again  in  30  Pa.  C.  C.  614,  the  petitioner 
failed  to  comply  with  the  rule  of  court  requiring  security.  Confer  Chase 
v.  Fisher,  239  Pa.  545  (1913),  refusal  to  set  aside  receiver's  sale,  Grove's 
Est.,  2  Woodward  182  (1867).  In  Acklin's  Est.,  237  Pa.  528  (1912),  a 
party  in  interest  petitioned  to  have  the  sale  set  aside  two  years  after  the 
purchase  money  had  been  paid  and  the  deed  delivered.  Petition  was  re- 
fused. 

(21)  See  cases  cited  n.  20  ante. 

(22)  In  Scott's  Est.,  4  Phila.  178  (1860),  27  L.  I.  4,  the  sale  was  set 
aside  and  the  petitioner  ordered  to  pay  purchaser  the  expenses  incurred. 


§  214  PRICE  of  THE  SALE.  167 

setting  aside  the  first  sale  upon  the  second  purchaser  entering 
into  a  binding  agreement  to  purchase  at  the  higher  price  with  a 
direction  to  reimburse  the  first  purchaser  for  the  money  outlay.23 

Decree  of  Confirmation  Conclusive  as  to  Adequacy  of  Price. 

§  214.  The  decree  confirming  the  sale  is  conclusive  as  to  the 
price,  consequently  so  long  as  the  decree  stands,  nobody  can  be 
heard  to  say  that  the  price  is  or  ought  to  be  other  than  the  amount 
set  out  in  the  decree.  Thus,  where  an  administrator  filed  his 
account,  having  made  a  sale  in  partition,  he  cannot  be  surchanged 
because  of  the  sale  of  the  property  at  an  undervaluation,  the 
remedy  in  such  a  case  being  to  apply  to  set  aside  the  sale  on  the 
ground  of  inadequacy  of  price.2* 

Where,  however,  an  executor  or  trustee  sells  under  an  express 
power,  the  rule  is  different.25  If  the  party  making  the  sale  is 

(23)  In  Brown's  App.,  68  Pa.  53  (1871),  the  court  set  aside  a  private 
sale  for  $5,250  under  the  Price  Act  before  confirmation  because  an  offer 
was  made  of  $6,400,  all  parties  except  the  first  purchaser  agreeing.    The 
court  set  aside  the  first  sale  and  authorized  acceptance  of  the  second  offer 
on  terms  of  reimbursing  the  first  purchaser. 

(24)  Armstrong's  App.,  68  Pa.  409  (1871).    In  McPherran's  Est.,  (No. 
i)  212  Pa.  425  (1905),  an  administrator  purchased  at  his  own  sale  by  leave 
of  court,  and  it  was  held  that  on  filing  his  account,  he  could  not  be  sur- 
charged with  the  profit  obtained  at  a  subsequent  re-sale.    In  Schur's  App., 
17  W.  N.  C.  140   (1886),  s.  c.  i   Sadler  335,  2  Atl.  336,  I   Cent.  888,  4 
East.  846,  affirming  Muller's  Est.,  16  Phila.  382,  41  L.  I.  274,  it  was  held 
that  a  party  interested  could  not  ratify  sale,  and  at  the  same  time  claim 
it  was  void  because  of  fraud.    If  a  sale  is  confirmed,  the  decree  fixing  the 
price  of  the  sale  must  be  accepted.    In  Hazlett's  Est.,  137  Pa.  587  (1890), 
there  was  an  administrator's  sale  for  payment  of  debts.    Exceptions  were  filed 
by  a  creditor,  the  estate  being  insolvent,  which  exceptions  were  dismissed. 
Brown,  P.  J.,  in  the  court  below  said,  "The  administratrix  is  asking  the 
sale  to  be  confirmed  and  if  she  has  wrongfully  refused  a  higher  bid  for 
the  property  by  reason  of  which  the  exceptant's  claim  against  the  estate, 
if  a  valid  one,  is  impaired,  he  has  his  remedy  against  her  in  the  settle- 
ment of  his  accounts  or  possibly  by  an  action."    These  remarks,  however, 
unless  understood  as  confined  to  a  case  of  fraud,  seem  to  be  against  the 
weight  of  authority  and  may  be  disregarded  as  unsound.     In  McRees' 
Est.,  6  Phila.  75   (186$),  22  L,.  I.  389,  a  sale  in  partition  was  confirmed. 
The  purchasers  at  the  sale  petitioned  for  an  order  on  the  trustee  ap- 
pointed to  make  the  sale  to  make  and  execute  a  deed,  which  petition  was 
granted,  the  fact  that  the  property  had  advanced  in  value  since  the  sale 
being  immaterial. 

(25)  Dundas's  App.,  64  Pa.  325  (1870). 


i68  ORPHANS'  COURT  SAI^ES.  §§  215, 216 

guilty  of  fraud,  the  rule  appears  to  be  otherwise  and  he  may  be 
surcharged  on  filing  his  account.26 

Fraud. 

§  215.  The  sale  may  be  set  aside  or  confirmation  refused  if 
it  appears  that  any  fraud  has  been  practiced.27 

Parties  Who  May  Object  to  the  Sale. 

§  216.  The  validity  of  the  sale  may  be  challenged  by  other 
parties  interested  by  exceptions  to  confirmation  or  petition  to 
open  sale.28 

(26)  In  Sheridan's  Est.,  10  Kulp  157  (1900),  an  executor  was  sur- 
charged with  the  difference  between  the  price  at  which  the  sale  had  been 
made  and  the  value  of  the  property,  it  appearing  that  he  knew  that  it  was 
worth  more  and  failed  in  his  obvious  duty  to  ask  to  have  the  return  of 
the  sale  set  aside,  consequently  was  subject  to  the  surcharge. 

(27)  Mitchell  v.  Kintzer,  5  Pa.  216   (1847);    Corbett's  Est.,  10  D.  R. 
59   (1900);    Myer's  Est,  9  Pa.  C.  C.  439   (1891),  defence  of  fraud  by 
executor  in  buying  at  his  own  sale.    Here  the  deed  was  delivered  but  no 
rights   of  third  parties  were   effected.     Armington's   Est.,    i    Phila.   444 
(1852),  10  I,.  I.  115.    It  is,  of  course,  clear  that  a  secret  agreement  be- 
tween lien  creditors,  by  which  they  are  not  to  bid  at  an  Orphans'  Court 
sale  of  real  estate  is  void  and  cannot  be  enforced  between  the  parties, 
Barton  v.  Benson,  126  Pa.  431  (1889).    The  rights  of  creditors  cannot  be 
affected  by  any  agreement  between  the  administrator  and  purchaser  after 
the  sale,  Fish's  Est,  16  Phila.  373  (1884),  s.  c.  41  L.  I.  263.    In  Brittain's 
Est,  28  Pa.  Super.  C.  144  (1905),  there  was  a  sale  by  an  executor  under 
a  power  which  was  set  aside  by  the  Orphans'  Court  after  execution  and 
delivery  of  deed  on  grounds  of  fraud  at  the  sale.    The  references  to  the 
Act  of  1853  are  a  dictum  entirely  uncalled  for  by  anything  in  the  case. 
Tanner's  Est,  218  Pa.  361    (1907),  guardian's  sale  set  aside  on  petition 
of  the  minor  because  guardian  bought  at  his  own  sale. 

(28)  In  the  following  cases,  relief  was  afforded  on  the  grounds  indi- 
cated:  Hannum's  App.,  2  Penny.  103  (1882),  adminstrator's  sale.    Petition 
to  open  sale  presented  by  lien  creditor  and  granted  on  the  ground  that  the 
administrator  bought  at  his  own  sale,  although  no  actual  fraud.    In  Ike's 
Est.,  200  Pa.  202  (1901),  the  sale  had  been  made  and  exceptions  to  the 
confirmation    of   the   sale   dismissed,    and   the   widow   petitioned   for   an 
issue  to  try  the  validity  of  the  note,  which  petition  was  refused.     But 
party   claiming   under   title    adverse    to    the    decedent    cannot    have   the 
sale  set  aside  on  the  ground  that  it  would  be  a  cloud  on  the  title.     He 
must  fight  out  the  question  with  the  purchaser.    Bodder's  Est.,  No.  I,  13 
D.  R.  471  (1904),  s.  c.  30  Pa.  C.  C.  417.    Heir  or  devisee,  however,  cannot 
object  except  on  the  grounds  of  (i)  inadequacy  of  price,  (2)  that  there 
was  no  jurisdiction  to  make  the  sale,  confer  Smith's  Est.,  188  Pa.  222 


§§  217, 2i8  LIABILITY  OF  PURCHASER.  169 

Preliminary  Discussion  as  to  Purchaser. 

§  217.  The  purchaser  is  bound  by  his  bid  and  may  not  trifle 
with  the  court  by  refusing  to  carry  out  the  bargain,  and  the 
remedy  by  way  of  specific  performance  will  be  used  against  him 
if  necessary.  On  the  other  hand,  it  is  desirable  to  encourage  bid- 
ders at  such  sales,  and  consequently  the  rule  of  caveat  emptor 
will  not  be  rigorously  enforced  so  as  to  work  on  injustice.  The 
purchaser,  however,  is  not  to  be  allowed  to  escape  from  his 
bargain  because  of  trifling  errors  and  defects  of  whicR  he  had 
notice.  The  court  furthermore  always  will,  if  application  be 
made  at  the  proper  time,  relieve  against  a  bona  fide  mistake. 

Refusal  of  Purchaser  to  Carry  Out  the  Terms  of  the  Sale. 

§  218.  If  the  purchaser  refuses  to  perform  his  part  of  the 
contract  and  carry  out  the  terms  of  the  sale,  the  court  may  grant 
an  alias  order  of  sale,29  and  if  the  sale  has  been  confirmed,  set 
the  confirmation  aside.  The  purchaser  will  then  be  liable  for  any 

(1898).  Carswell's  Pet.,  I  Phila.  521  (1854),  s.  c.  12  L.  I.  14,  petition  by  cestui 
que  trust  for  order  on  trustee  to  make  a  mortgage.  Trustees  exceptions 
were  dismissed.  As  to  exceptions  by  remaindermen,  see  Gamble's  Est., 
9  D.  R.  691  (1900)  ;  Loucks's  Est.,  203  Pa.  278  (1902)  ;  Smith's  Est.,  207 
Pa.  604  (1904).  In  Drayton's  Est.,  6  Phila.  157  (1866),  s.  c.  23  L.  I.  133, 
an  examiner  had  reported  in  favor  of  granting  the  petition  of  a  guardian 
of  a  minor  for  an  order  of  sale  under  the  Act  of  1851.  Petition  was 
presented  by  the  heirs  ex  parte  materna  of  the  minor  to  vacate  the  order 
on  the  ground  that  the  sale  would  produce  a  conversion  of  the  minor's 
interest,  and  therefore  change  the  course  of  descent  to  the  detriment  of 
the  petitioners.  Petition  dismissed  on  the  ground  that  the  sale  was  under 
the  Act  of  1851  and  would  not  produce  a  conversion.  The  heirs  of  a  de- 
cedent should  always  have  an  opportunity  to  show  that  the  debts  for  the 
payment  of  which  the  sale  is  ordered  are  unjust  or  not  well  founded, 
consequently  when  they  are  not  parties  to  the  proceedings  establishing  the 
debt,  they  may  have  the  proceedings  for  the  sale  set  aside  or  suspended 
until  they  have  an  opportunity  to  contest  the  debt,  Murphy's  App.,  8 
W.  &  S.  165  (1844);  Dean's  App.,  87  Pa.  24  (1878).  As  to  standing 
of  a  judgment  creditor  of  an  heir  to  object,  see  Gheen's  Est.,  12  Phila. 
123  (1878),  s.  c.  35  L.  L  234,  confer  Gheen's  Est.,  5  W.  N.  C.  319  (1878), 
perhaps  the  same  case.  In  Derr's  Est.,  203  Pa.  96  (1902),  where  trustees 
had  invested  in  real  estate  under  the  order  of  the  Orphan's  Court  made 
under  the  Act  of  April  13,  1854,  P.  L.  368,  a  petition  by  the  cestui  que  trust 
fifteen  years  later  was  dismissed. 

(29)  Jayne's  Est,  2  W.  N.  C.  536   (1876). 

12 


170  ORPHANS'  COURT  SALES.  §  219 

loss  at  a  resale  unless  the  terms  of  the  sale  are  varied  so  as  to 
put  the  bidders  in  a  less  advantageous  position.30 

Purchaser  Should  Defend  by  Objecting  to  the  Confirmation. 

§  219.  Where  there  is  any  error  in  the  proceedings  or  any 
irregularity  affecting  the  title  of  the  purchaser,  the  proper  prac- 
tice is  for  him  to  file  exceptions  to  the  confirmation,31  or  if  the 
sale  has  been  confirmed,  to  petition  to  have  the  confirmation  set 
aside.32 

(30)  Banes  v.  Gordon,  9  Pa.  426  (1848),  purchaser  was  not  held  liable 
because  the  terms  of  the  first  sale  were  one-half  cash  and  the  balance  in 
one  year,  security  by  bond  and  mortgage,  and  the  terms  of  the  second 
sale  were  cash.    Confer,  Paul  v.  Shallcross,  2  Rawle  326  (1830).    Kelly's 
Est.,  17  D.  R.  647   (1908),  petition  by  person  interested  to  have  decree 
of  confirmation  of  sale  set  aside,  which  was  granted.    The  purchaser  at  the 
sale  not  making  a  deposit,  the  auctioneer  re-sold  the  property  instead  of 
offering   it   to    the   next    highest    bidder,    in    consequence    of    which    the 
property  was  sold  at  a  smaller  price.    Rule  otherwise  in  case  of  sheriff's 
sale;   see  Hotchkiss  v.  Homan,  25  Pa.  C.  C.  314  (1901). 

(31)  Purchaser  must  object  before  the  confirmation,   Confer  Dull  v. 
Slater,  31  Super.  C.  488  (1906). 

(32)  In  these  cases  the  purchaser  was  afforded  relief  upon  proper  pro- 
ceedings by  the  court  opening  the  decree  confirming  the  sale,  or  refusing 
to  confirm  return  to  order  of  sale.     Hammiirs  Est.,  234  Pa.  438  (1912), 
public  sale  in  partition.     Defence  that  the  purchaser  had  been  induced  to 
bid  upon  the  belief  that  the  representations  of  the  auctioneer  would  be  rati- 
fied by  the  trustee  and  that  they  were  not  so  ratified.    Purchaser,  however, 
had  to  pay  cost  because  of  his  negligent  conduct.     McCaffrey  v.  Gibney, 
223  Pa.  368  (1900),  guardian's  sale  had  failed  to  bar  contingent  remainders. 
Decree  partially  vacated  and  second  sale  to  the  same  purchaser  at  the  same 
price  directed.     Bodder's  Est.,  31  Pa.  C.  C.  46  (1904),  s.  c.  14  D.  R.  53, 
petition  to  set  aside  sale.    Misleading  statements  at  the  sale,  the  purchaser 
would  only  obtain  a  law  suit.     See  Bodder's  Est.    (2),  30  Pa.  C.  C.  417 
(1904),  s.  c.  13  D.  R.  471    (1904).     Veihdorfer's  Est.,  26  Pa.  C.  C.  317 
(1900),  petition  by  purchaser  to  set  sale  aside.     Advertisement  of  the  sale 
contained  exaggerated  misrepresentations  as  to  the  value  of  the  property 
and  as  to  material  fact,  thereby  misleading  the  purchaser.     Wiltberger's 
Est.,  18  Phila.  232  (1887),  s.  c.  44  L.  I.  431,  4  Pa.  C.  C.  184,  misdescrip- 
tion  and  misrepresentation  as  to   fact  that   a   street  had  been   widened. 
Petition  of  purchaser  to  rescind  confirmation  of  sale;    petition  granted. 
DeHaven's  App.,   106  Pa.  612   (1884),  misrepresentation  by  administrator 
made  at  the  sale  as  to  the  title  of  the  land  sold.     Petition  granted.     Sale 
set  aside.    Objections  had  been  raised  by  other  parties,  and  sale  confirmed 
in  such  proceedings.    Purchaser  not  thereby  prevented  from  taking  pro- 
ceedings attacking  the  sale.     Updike's  Est.,  18  D.  R.  982   (1909),  was  a 


§  220  LIABILITY  of  PURCHASER.  171 

Liablity  of  Purchaser  After  Confirmation. 

§  220.  Where  the  sale  has  been  confirmed,  the  liability  of  the 
purchaser  to  pay  the  purchase  money  becomes  fixed,  and  since 
he  has  a  remedy  by  attacking  the  confirmation  of  the  sale,  the 

case  of  a  petition  by  a  purchaser  at  an  administrator's  sale  for  the  pay- 
ment of  debts,  to  revoke  order  for  sale  of  decedent's  real  estate  on  the 
ground  that  the  lien  of  debts  had  expired.  Decree  authorizing  sale  re- 
voked. The  court  said  a  court  of  equity  will  grant  relief  before  the  de- 
livery of  the  deed  and  the  payment  of  the  purchase  money.  Hostetter's 
Est,  222  Pa.  197  (1908),  was  a  petition  to  open  confirmation  of  admin- 
istrator's sale.  The  administrator  and  purchaser  had  agreed  in  advance 
of  the  sale  to  submit  the  validity  of  the  title  to  the  determination  of  the 
court  in  a  case  stated.  Held  that  the  purchaser  had  no  standing  to 
contest  the  sale  until  he  had  taken  steps  to  have  a  case  stated  submitted 
to  the  determination  of  the  court  and  then  the  court  should  fix  a  time 
within  which  a  case  stated  should  be  submitted.  In  Schwartz's  Est.,  12 
Phila.  71,  s.  c.  35  L.  I.  153  (1878),  the  sale  was  set  aside  as  the  prop- 
erty was  subject  to  an  encumbrance  and  the  auctioneer  did  not  announce 
the  existence  of  the  mortgage,  and  it  was  held  that  as  the  purchaser  was 
misled,  he  was  entitled  to  relief;  as  the  administrator  was  at  fault  in 
not  having  the  proper  announcement  made,  he  was  directed  to  pay  the 
costs.  In  Whiteman's  Est.,  13  Phila.  249  (1879),  s.  c.  36  L.  I.  286,  there 
was  a  petition  by  a  trustee  appointed  in  partition  to  compel  payment  of 
the  purchase  money  or  set  aside  the  sale.  The  sale  was  set  aside  on 
purchaser  paying  the  costs,  it  appearing  that  the  sale  had  been  adver- 
tised free  of  encumbrances,  and  there  was  a  private  right  of  way  across 
the  property,  the  existence  of  which  was  unknown.  In  Pennock's  App., 
14  Pa.  446  (1850),  exceptions  by  purchaser  to  confirmation  of  adminis- 
trator's sale  for  payment  of  debts  were  sustained  on  the  ground  that  the 
administrator  employed  puffers  at  the  sale,  by  reason  of  which  the  pur- 
chaser paid  a  sum  in  excess  of  the  real  value.  The  exceptions  were 
dismissed  in  the  court  below,  which  was  reversed  on  appeal,  overruling 
the  case  of  Steel  v.  Ellmaker,  n  S.  &  R.  86  (1824),  which  was  a  case  of 
a  sale  of  goods  at  auction,  where  it  was  decided  that  the  seller  might 
fairly  employ  an  agent  to  bid  the  property  up  at  the  sale  to  a  limited 
price  without  making  it  publicly  known.  Horn's  Est,  10  York  156  (1896), 
accord.  In  Schug's  App.,  14  W.  N.  C.  49  (1883),  s.  c.  41  L.  I.  45.  there 
was  an  administrator's  sale  for  payment  of  debts  which  was  returned  and 
confirmed.  A  rule  by  the  purchaser  to  show  cause  why  confirmation 
of  sale  should  not  be  struck  off  was  taken  on  the  ground  of  (i)  puffing 
at  the  sale,  (2)  mistake  of  25%  in  the  number  of  acres  sold.  The 
court  below  discharged  the  rule,  which  was  reversed  on  appeal,  and  the 
sale  set  aside,  and  the  administrator  ordered  to  refund  to  the  purchaser 
the  money  paid  on  account,  the  fact  that  the  puffing  was  not  authorized 
by  the  administrator  being  immaterial.  In  Dively's  Est.,  i  Lane.  L.  R. 
359  (1884),  there  was  a  trustee's  return  to  order  of  sale,  and  exceptions 


172  ORPHANS'  COURT  SALES.  §  220 

general  rule  is  that  he  cannot  set  up  any  defence  to  the  payment 
of  the  purchase  money,  to  which  rule  there  are  certain  excep- 
tions which  will  be  noted. 

Proceedings  may  be  taken  in  the  Orphans'  Court  against  the 
purchaser   for   specific   performance   under   the   general   equity 

were  filed  by  the  purchaser  on  the  ground  of  false  and  fictitious  bidding 
at  the  sale,  which  were  sustained  and  sale  set  aside  at  the  cost  of  the 
estate.  New  order  of  sale  to  issue.  In  Penn  Square  Bldg.  Assn.'s  App., 
%il/2  Pa.  330  (1876),  there  is  a  dictum  that  where  a  purchaser  at  a  sale 
purchased  for  full  value  in  ignorance  of  the  law  or  fact  that  a  certain 
mortgage  was  not  discharged  by  the  sale,  the  court  before  confirmation 
has  power  to  and  probably  will  grant  him  relief.  For  a  case  where 
such  relief  was  granted,  see  Johnson's  Est.,  15  Phila.  543  (1882),  s.  c. 
39  L,.  I.  160.  In  Moulton's  Est.,  15  Phila.  579  (1882),  s.  c.  39  L.  I.  412, 
decree  confirming  sale  vacated  on  petition,  probably  of  the  purchaser, 
that  the  handbills  misstated  the  amount  due  on  an  encumbrance  subject 
to  which  the  property  was  sold. 

In  King's  Est.,  2  Leh.  Val.  L.  R.  229  (1886),  exceptions  to  return  of 
sale  by  a  purchaser  were  sustained,  it  appearing  that  there  was  a  cloud 
on  the  title,  and  that  the  purchaser  had  been  led  to  believe  that  the  title 
was  unquestioned.  In  Bopp's  Est.,  18  York  161  (1905),  the  purchaser's 
petition  to  have  the  sale  set  aside  was  granted,  it  appearing  that  the  pe- 
tition had  been  presented  under  the  Act  of  June  12,  1893,  P.  L.  461, 
and  was  irregular  because  it  was  not  the  joint  petition  of  the  widow  and 
heirs.  In  Lerch's  Est.  2  Leh.  Val.  L.  R.  348  (1886),  exceptions  by  the 
purchaser  were  sustained,  it  appearing  that  the  interest  sold  was  an  un- 
divided one  instead  of  an  entire  interest  in  the  property. 

In  these  cases  the  purchaser  was  denied  relief:  Murtland's  Est.,  16 
Phila.  222  (1883),  s.  c.  40  L.  I.  120,  petition  by  purchaser  to  vacate  sale 
was  refused,  the  misdescription  alleged  being  insufficient  to  justify  setting 
aside  the  sale.  In  Boyle's  Est.,  2  Kulp  169  (1882),  exceptions  to  the 
report  of  the  examiner  in  the  matter  of  enforcing  sale  of  real  estate  were 
dismissed,  five  years  having  elapsed  from  the  time  of  the  sale  and  the 
purchaser  having,  in  the  meantime,  been  in  possession ;  it  was  held  that 
he  could  not  set  up  a  misunderstanding  of  his  rights.  In  Gillespie's  Est., 
10  Watts  300  (1840)  there  was  an  administrator's  sale  and  decree  made 
confirming  sale  and  appeal  therefrom.  A  would-be  purchaser  who  had 
not  obtained  the  property  objected  on  the  ground  of  irregularity  and 
that  administrator  had  adjourned  the  sale.  It  was  held  that  the  admin- 
istrator could  so  adjourn  for  not  more  than  twenty  days;  that  the  pe- 
titioner was  guilty  of  laches,  and  all  the  other  parties  thought  the  sale 
was  fair  and  to  their  interest  and  advantage.  It  does  not  seem  that 
a  stranger  who  is  anxious  to  obtain  the  property  has  much  standing  to 
object  to  the  sale  which  has  been  made.  See  Hamilton's  Est.,  51  Pa.  58 
(1865).  In  Miller's  Est.,  8  York  7  (1893),  exceptions  by  purchaser  to 
return  of  sale  were  sustained. 


§  22o  LIABILITY  OF  THE  PURCHASER.  173 

power  of  the  court  or  the  parties  may  submit  a  case  stated  in  the 
Common  Pleas  for  the  determination  of  the  court,33  or  an  action 
of  assumpsit  may  be  brought  in  the  Common  Pleas  for  the  pur- 
chase money  or  the  balance  due.34 

(33)  F°r  instance  of  case  stated,  see  Reed  v.  Palmer,  53  Pa.  379  (1866). 

(34)  In  the  following  cases  the  sale  had  been  confirmed  by  the  court, 
and  in  an  action  for  the  purchase  money,  it  was  held  that  the  purchaser 
could  not  interpose  the  defence  specified,  his  liability  to  pay  becoming  ab- 
solute on  the  confirmation  of  the  sale.    In  most  of  these  cases  it  appeared 
that  the  deed  had  been   delivered  and  accepted.     In  none  of   them,   at 
least  was  there  any  indication  to  the  contrary :    Fahrig  v.  Schimpff,  199 
Pa.  423   (1901),  administrator's  sale,  defence  of  vendee  that  he  bought 
for   the   administratrix   personally,   and   was   only   to   be   accountable    to 
her   for  what  he  realized  on  a   re-sale.     Miles   v.   Diven,  6  Watts   148 
(J837),  administrator's  sale,  defence  of  misrepresentation  by  administrator 
and  mistake  in  quantity  of  land  sold.     Vandever  v.   Baker,   13   Pa.   121 
(1850),  administrator's  sale,  defence  of  misrepresentation  by  declaration 
of  the  crier  as  to  encumbrances.     Crier  had  no  authority  to  make  a  con- 
tract or  vary  the  terms  of  the  sale.     Dawson  and   Springer  v.   Ewing, 
16  S.  &  R.  371    (1827),  administrator's  sale,   defect  in  title   of  the   de- 
cedent of  which  they  had  no  notice,  and  failure  of  administrator  to  give 
bond.     Bashore  v.  Whisler,  3  Watts  490  (1835),  administrator's  sale,  de- 
fence of  title  outstanding  in  third  person  of  which  notice  had  been  given 
at  the  sale.     King  v.  Gunnison,  4  Pa.   171    (1846),  administrator's   sale. 
Defence  that  title  was  in  a  third  party.     Sackett  v.  Twining,  18  Pa.  199 
(1852),    administrator's    sale    in    proceedings    in    partition.      Defence    of 
deficiency  in  quantity  of  acres.     Purchaser   failed  to  have  a  re-survey 
before    confirmation,    which    right    was    reserved    to    him    by   the    terms 
of  the  sale.     In  Donnelly  v.  Byers,  234  Pa.  339   (1912),  executor's  and 
trustees'  private  sale  under  power  ratified  by  Orphans'  Court  as  a  sale 
for  the  payment  of  debts.     Defence  of  purchaser  that  land  was  subject 
to  claim  of  creditors  of  the  decedent,  all  of  whom  were  barred   from 
claiming  against  the  real  estate.     Language  of  Mestrezat,  J.,  too  broad. 
In  Richter  v.  Fitzsimmons,  4  Watts  251    (1835),  there  was  an  action  for 
purchase  money  by  the  administrator.     Sale  confirmed  and  deed  offered 
to  purchaser  who  refused  to  pay  the  purchase  money.     The  purchaser 
had  objected  to  confirmation  of  the  sale,  and  the  court  had  overruled 
the  objections.     He  now   apparently  presented  the   same  objections   and 
also    some    others.      It   was    held   that   the   decree    was    final,   under   the 
statute.     In   Fox  v.    Mensch,  3   W.   &   S.   444    (1842),   sale   by   adminis- 
trator.     Defence   that   there   was   only    a   reversionary    interest    sold    in- 
stead of  an  interest  in  fee.     In  Robb  v.  Mann,  II   Pa.  300  (1849),  there 
was  an  administrator's  sale  for  payment  of  debts  and  an  action  on  the 
case    for  the   balance  of  first   instalment   of   purchase    money,   the   sale 
having  been  confirmed  and  deed  tendered  to  purchaser  who  refused  it 
and  had  gone  into  possession;    the  defence  was  raised  that  the  machinery 
and  apparatus  of  a  stone  distillery  situate  on  the  premises  and  sold  with 


174  ORPHANS'  COURT  SALES.  §  220 

Where,  however,  the  court  is  without  jurisdiction  and  no  title 
will  pass  under  the  decree,  the  purchaser  will  not  be  compelled 
to  pay  the  purchase  money  and  may  set  up  the  defence  in  an  ac- 
tion therefor,35  or  in  a  proceeding  for  specific  performance. 

it  had  been  removed  between  the  time  of  the  sale  and  the  confirmation 
thereof,  which  defence  was  overruled.  The  court  said  that  the  loss  should 
fall  on  the  purchaser  who  had  an  inceptive  title  to  the  land  and  a  remedy 
against  the  person  who  took  away  the  property. 

In  Gilmore  v.  Rodgers,  41  Pa.  120  (1861),  s.  c.  9  Pitts.  L,.  J.  209,  sub 
nom.  Gilmore  v.  Rogers,  19  L.  I.  28,  a  guardian  sold  under  order  of 
court,  the  undivided  interest  of  the  minor,  and  in  a  suit  against  the  pur- 
chaser on  the  purchase  money  obligation,  the  defendant  set  up  in  defence 
the  following  defects  in  the  proceedings:  (i)  mistake  as  to  the  amount 
of  the  interest  of  the  minors,  it  appearing  that  they  had  five-sevenths 
when  they  were  supposed  to  have  had,  and  settlement  made  on  the  basis 
of  their  owning,  one-half;  (2)  mistake  in  the  acreage;  (3)  circumstance 
that  the  owners  of  the  other  undivided  interests  did  not  join  in  the  pe- 
tition; (4)  that  the  private  sale  of  an  undivided  interest  was  not  author- 
ized by  the  act;  (5)  that  the  record  was  irregular  in  that  there  was  no 
return  to  the  order  of  sale  until  after  two  entire  terms  of  court  had 
intervened,  and  the  report  of  the  guardian  was  not  signed  or  sworn  to. 
Judgment  for  plaintiff.  In  McCaffrey  v.  Gibney,  223  Pa.  368  (1909),  an 
action  of  assumpsit  was  brought  to  recover  balance  of  purchase  money, 
judgment  was  entered  for  the  plaintiff.  The  defence  that  the  sale  failed 
to  bar  contingent  remainders,  and  that  it  was  void  because  a  ratification 
of  a  previous  private  sale,  was  overruled. 

(35)  O'Brien  v.  Wiggins,  14  Super.  Ct.  37  (1900),  was  an  action  of 
assumpsit  to  recover  purchase  money  by  administrator  who  had  had  a 
private  sale  for  the  payment  of  debts  confirmed  by  the  court.  Defence 
was  that  the  sale  did  not  divest  the  lien  of  certain  judgments  entered 
against  the  intestate  in  his  lifetime.  Judgment  for  the  defendant  as  the 
court  held  the  judgments  were  not  discharged.  The  Act  of  1853  did  not 
apply  because  by  the  Act  of  March  23,  1867,  P.  L.  43,  the  lien  of  debts 
of  record  are  saved  from  discharge  by  private  sales.  The  Act  of  May  9, 
1889,  P.  L.  182,  only  authorizes  a  private  sale  where  under  existing  laws 
the  court  had  power  to  decree  a  sale,  and  therefore  the  validity  of  the 
sale  must  be  decided  by  the  provisions  of  the  prior  act.  That  the  pe- 
tition was  under  the  Act  of  March  29,  1832,  P.  L.  190,  a  public  sale 
under  which  discharged  the  lien  of  judgments,  and  therefore  a  decree 
under  the  Act  of  1889  upon  a  private  sale  would  have  the  same  effect, 
but  that  the  case  was  not  properly  conducted  under  the  Act  of  1832, 
because  it  did  not  have  the  averment  that  the  personal  estate  of  the  de- 
cedent was  insufficient  for  the  payment  of  his  debts  nor  an  inventory  of 
the  personal  estate,  a  correct  statement  of  the  real  estate,  or  an  account 
of  the  debts  of  the  decedent.  The  court  based  its  decision  expressly  on 


§221  LIABILITY  OF  PURCHASER.  175 

Liability  of  Purchaser  After  Deed  Delivered  and  Purchase  Money  Paid. 

§  221.  Where  the  deed  has  been  delivered  and  purchase 
money  paid,  the  purchaser  must  remain  content  with  the  title 
he  has  acquired  as  he  has  had  an  opportunity  to  present  any  de- 
fence in  court.  The  court  even  here,  however,  will  interfere 
upon  grounds  of  mistake  and  fraud  although  being  very  careful 
to  respect  any  intervening  rights  of  third  parties.36 

the  ground  that  the  facts  set  forth  in  the  petition  were  insufficient  to 
confer  jurisdiction  on  the  Orphans'  Court  to  decree  a  sale. 

In  Westhafer  v.  Koons,  144  Pa.  26  (1891),  there  was  a  case  stated  to 
determine  the  validity  of  the  title  derived  under  Orphans'  Court  proceed- 
ings, and  it  was  held  that  the  purchaser  could  refuse  to  take  the  title 
because  there  was  a  failure  to  set  out  in  the  petition  the  circumstance 
that  the  proceedings  were  to  bar  contingent  remainders,  and  therefore 
the  remainders  were  not  barred. 

In  Keller  v.  Lees,  176  Pa.  47  (1896),  there  was  an  action  of  as- 
sumpsit  for  the  purchase  money,  and  the  defendant  was  allowed  to  set 
up,  to  relieve  himself  from  payment,  that  the  sale  failed  to  bar  remainders 
to  a  class,  as  there  was  no  jurisdiction  under  the  act  to  make  a  decree  in 
such  a  case. 

In  these  cases,  a  bill  in  equity  was  filed  for  specific  performance  and 
the  purchaser  was  allowed  to  set  up  the  defence  specified.  Howe's  Est, 
14  Pa.  C.  C.  574  (1894),  s.  c.  3  D.  R.  267,  purchaser  permitted  to  resist 
petition  for  specific  performance  because  the  auctioneer  stated  that  the 
ground  rent  on  the  property  was  redeemable  when  it  was  irredeemable. 
In  Taylor's  Est.,  17  D.  R.  692  (1908),  the  court  refused  to  make  a  decree 
since  the  title  of  the  purchaser  would  be  unmarketable  owing  to  irre- 
deemable ground  rents.  Confer,  dictum  in  Bickley's  Admr.  v.  Biddle, 
33  Pa.  276  (1859).  In  Miller  v.  Spear,  21  W.  N.  C.  554  (1888),  there  was 
an  administrator's  sale  for  payment  of  debts,  and  on  a  bill  in  equity  in 
the  Common  Pleas  for  specific  performance  a  decree  was  entered  for 
the  purchaser  because  the  sale  was  private,  and  the  statute  only  author- 
ized a  public  sale,  and  therefore  no  title  would  be  conferred.  The  pur- 
chaser was  denied  relief  in  Brock  v.  Steel  Co.,  203  Pa.  249  (1902),  where 
in  a  bill  in  equity  for  specific  performance  in  the  Common  Pleas,  decree 
was  entered  for  the  plaintiff.  The  purchaser  set  up  a  defence  as  to  ir- 
regularities in  the  form  of  the  petition. 

(36)  Where  a  guardian  has  sold  under  order  of  the  Orphans'  Court 
a  tract  of  land  for  200  acres  which  in  fact  contained  only  32  acres,  the 
purchaser  on  application  to  the  court  two  years  after  the  date  of  the 
deed  could  have  the  sale  set  aside,  deed  back  the  land  and  obtain  a  resti- 
tution of  the  purchase  money,  Johnson's  App.,  114  Pa.  132  (1886). 

In  Nimick's  Est.,  179  Pa.  591  (1897),  the  court  upon  petition  seven 
years  after  the  deed  was  delivered,  corrected  the  deed  by  setting  aside 
the  conveyance  and  directing  the  conveyance  to  be  made  in  proper  form. 


176  ORPHANS'  COURT  SALES.  §  222 

The  Title  Passed  by  the  Sale. 

§  222.  The  Orphans'  Court  can  only  authorize  the  sale,  etc., 
of  the  title  derived  under  the  deed  or  will  or  acquired  by  pur- 
chase in  the  manner  prescribed  in  the  act,  and  all  other  interests 
remain  unaffected  unless  they  are  such  interests  as  cannot  be  as- 
serted against  a  purchaser  for  value  without  notice,  and  the  pur- 
chaser at  the  sale  can  bring  himself  withing  that  definition.37 

The  deed  was  made  by  mistake  to  certain  individuals  as  surviving  part- 
ners as  tenants  in  common,  when  it  should  have  been  made  to  them  as 
surviving  partners.  Where  there  was  a  mistake  in  the  case  of  a  sale  by  a 
guardian  of  the  interest  of  a  minor,  which  mistake  was  participated  in  by  the 
purchaser,  the  court  held,  the  deed  having  been  delivered,  that  the  mistake 
could  not  be  corrected ;  and  as  the  time  for  the  correction  of  the  error  had 
long  since  elapsed,  the  vendor  could  not  set  up  the  defence  in  an  action  on  a 
bond  for  the  purchase  money,  Gilmore  v.  Rodgers,  41  Pa.  120  (1861). 
Tubb's  Est.,  4  D.  R.  325  (1894),  sale  for  payment  of  debts.  Discovery  of  old 
deed  showing  that  the  decedent  had  a  one-eighth  instead  of  the  whole. 
Rule  by  purchaser  to  set  aside  after  delivery  of  deed  but  before  pay- 
ment of  purchase  money,  was  granted.  Administrator  consented  to  rule 
which  was  opposed  by  one  creditor.  Confer  also  Duncan's  Est.,  I  W.  N.  C. 
14  (1874). 

In  these  cases  the  rights  of  third  parties  had  intervened :  Landreth  v. 
Howell,  24  Super.  C.  210  (1904),  in  this  case  there  was  a  mistake  of  10 
per  cent,  in  acreage  in  a  master's  deed  in  partition,  and  the  money  had 
been  distributed.  It  was  held  that  the  purchaser,  who  brought  assumpsit 
against  one  of  the  parties  who  had  received  the  fund,  could  not  have 
relief.  In  Wylie's  Est.,  7  D.  R.  748  (1898),  an  administrator's  sale  for 
the  payment  of  debts  was  confirmed,  and  a  deed  delivered  to  purchaser. 
The  sale  was  set  aside  on  petition  of  a  judgment  creditor  because  the 
court  had  been  misled  as  to  the  encumbrances  on  the  property.  The  de- 
cree expressly  protected  the  rights  of  the  purchaser. 

(37)  In  McCormick's  App.,  57  Pa.  54  (1868)  there  was  a  sale  of  the 
legal  title  of  a  partner  for  the  payment  of  his  debts,  and  it  was  held 
that  the  sale  passed  only  his  interest  as  partner  in  the  land.  Dictum  case 
arose  on  distribution  of  the  proceeds. 

Kline's  App.,  39  Pa.  463  (1861),  administrator's  sale  for  payment  of 
debts  was  duly  confirmed.  Before  deed  delivered,  widow  petitioned  to 
vacate  sale,  claiming  a  resulting  trust  in  the  land  in  her  favor.  Petition 
refused  as  proof  of  trust  was  insufficient.  The  purchaser  was  willing  to 
have  sale  confirmed  and  as  only  title  of  decedent  was  sold,  the  widow 
had  a  right  to  maintain  an  ejectment. 

In  Bodder's  Est.,  No.  I,  30  Pa.  C.  C.  417  (1904),  the  property  of  a  de- 
cedent was  sold  for  the  payment  of  debts,  and  a  claimant  under  a  deed 
from  the  decedent  in  his  lifetime  petitioned  for  an  order  to  set  aside 
the  sale,  which  was  refused,  the  court  saying  that  his  remedy  was  by 
ejectment,  and  that  the  purchaser  at  the  sale  only  bought  the  title  of  the 
decedent. 


§  223  PURCHASER  OBTAINING  POSSESSION.  177 

Any  title  which  could  be  successfully  asserted  against  the  title 
sold  will  be  unaffected  by  the  sale,  and  any  title  which  was  un- 
availing against  the  title  sold  will  be  equally  unavailing  against 
the  purchaser. 

It  seems  also  that  the  deed  passes  all  the  land  intended  to  be 
sold,  and  the  omission  of  part  of  the  property  in  the  description 
is  immaterial  where  the  case  arises  in  a  collateral  action  forty 
years  after  the  sale.38  So  also  where  the  title  sold  is  subject  to 
a  right  of  way,  the  purchaser  takes  subject  to  the  easement,39  and 
a  claim  by  adverse  possession  against  the  title  sold  may  be  set 
up  against  the  purchaser  at  the  sale.40 

George  v.  Trust  Co.41  was  an  ejectment  by  a  daughter  against 
the  estate  of  her  mother  to  recover  an  interest  in  land,  of  which 
the  plaintiff's  father  had  died  intestate,  and  which  had  been  sold 
by  his  administrator,  under  order  of  Orphans'  Court,  to  his 
widow,  the  defendant.  The  daughter  claimed  that  her  interest 
as  heir  of  her  father  was  not  divested  by  the  sale.  Judgment  was 
entered  for  the  defendant  as  the  plaintiff  was  estopped. 

Purchaser  Obtaining  Possession. 

§  223.  It  was  provided  by  the  Act  of  April  9,  i849,42  that  the 
purchaser  of  real  estate  sold  under  order  of  the  Orphans'  Court 
should  have  the  right  to  recover  possession  after  confirmation 
of  the  sale  and  execution  and  acknowledgment  of  the  deed  in  the 
same  manner  as  was  provided  in  relation  to  purchasers  at  sheriff's 
sale.43 

(38)  McGhee  v.  Hoyt,  106  Pa.  516  (1884),  s.  c.  41  L.  I.  399. 

(39)  In  Overdeer  v.  Updegraff,  69  Pa.   no  (1871),  there  was  an  ad- 
ministrator's sale  for  payment  of  debts  of  property  which  was   subject 
to  an  apparent  continuous  and  necessary  easement  imposed  by  the  de- 
cedent in  his  lifetime  for  the  benefit  of  other  properties.     The  alley  was 
not  mentioned  in  any  of  the  court  proceedings  but  was  reserved  in  the  con- 
ditions of  sale  and  in  the  deed.    It  was  held  that  the  purchaser  took  subject, 
the  case  arising  in  an  action  by  the  servient  tenement  against  the  dominant 
tenement  for  trespassing  on  the  easement,  Tomlison  v.  Trenton,  N.  H.  & 
L.  St.  Ry.  Co.,  31  Pa.  C.  C.  81  (1905). 

(40)  Harrington  v.  Stivanson,  210  Pa.   10   (1904). 

(41)  234  Pa.  300  (1912). 

(42)  P.  L.  524,  Sec.  16. 

(43)  For  cases  of  a  proceeding  under  this  act,  see  Merritt  v.  Whitlock, 
200  Pa.  50   (1901),  where  it  was  held  that  the  Act  of  May  24,  1878,  P. 
L.  134,  providing  that  one  justice  of  the  peace  could  act  where  two  were 


178  ORPHANS'  COURT  SALES.  §  224 

The  Act  of  April  20,  1905,"  purports  to  provide  a  remedy  by 
which  purchasers  at  judicial  sales  may  obtain  possession  and  ex- 
pressly repeals  the  latter  part  of  Sec.  16  of  the  Act  of  April  9, 


The  act  of  1905  is  of  doubtful  constitutionality  since  the  title 
does  not  appear  to  give  notice  of  all  its  contents,  and  there  is 
therefore  some  doubt  as  to  the  remedy  which  a  purchaser  at 
Orphans'  Court  sale  now  has  for  obtaining  possession.  Of  course, 
if  the  proceedings  are  under  the  Act  of  1905,  and  the  defendant 
raises  no  question  as  to  the  constitutionality,  the  purchaser  may 
obtain  his  remedy  under  that  act,  and  if  it  should  be  subsequently 
declared  unconstitutional  in  another  proceeding,  it  would  not  af- 
fect him  as  he  would  be  in  possession  of  that  which  was  his  own. 
If,  however,  the  defendant  should  raise  the  question  of  consti- 
tutionality and  the  act  be  declared  unconstitutional,  then  the  pur- 
chaser would  have  to  begin  over  again  under  the  Act  of  April 
9,  1849." 

Rights  of  the  Various  Parties  Pending  Completion  of  the  Sale. 

§  224.  Since  the  actual  sale,  the  confirmation  thereof  by  the 
court,  and  the  payment  of  the  purchase  money  and  delivery  of 
the  deed  are  not  simultaneous  acts  but  are  separated  by  some 
little  intervals  of  time,  questions  frequently  arise  as  to  the  rights 
of  the  parties  in  the  meantime.  The  case  differs  from  that  of 
an  ordinary  vendor  and  vendee  in  that  the  sale  is  made  by  the 
court  which  may  withdraw  at  any  time,  even  after  the  consum- 
mation of  the  sale.  The  general  law  therefore  governing  the  re- 
lation of  vendor  and  vendee  will  be  subject  to  some  variation. 

We  must  therefore  consider  (i)  The  title  of  the  heir  or  de- 
visee, (2)  The  incident  of  rights  and  liabilities  between  the  heir 
or  devisee  and  the  purchaser,  (3)  The  title  of  the  purchaser  as  to 
which  latter  it  will  be  necessary  to  distinguish  (a)  the  lien  of 

before  required,  did  not  effect  the  Act  of  1849,  supra,  and  the  proceedings 
were  therefore  void  because  held  before  only  one  justice.  Potts  v.  Wright, 
82  Pa.  498  (1877),  s.  c.  34  L.  I.  148,  24  Pitts.  L.  J.  125,  5  Law  Times  O.  S, 
35,  9  Lane.  Bar  14. 

(44)  P.  L.  239.     See  Act  of  April  8,  1905,  P.  L.  121. 

(45)  P.  L.  524- 

(46)  P.  L.  524,  Sec.  16.    In  the  case  of  Young  v.  McCamant,  241  Pa. 
232  (1913),  proceedings  were  sustained  under  the  Act  of  April  20,  1905. 
P.  L.  239,  without  any  question  being  raised  as  to  its  constitutionality. 


§§225,  226  RIGHTS  PENDING  COMPLETION  of  THE  SALE.  179 

judgments,   (b)   rights  against  third  parties,   (c)   devolution  of 
the  title. 

Title  of  the  Heir  or  Devisee. 

§  225.  The  title  of  the  heir  or  devisee  is  not  divested  until  the 
confirmation  of  the  sale  and  the  execution  and  delivery  of  the 
deed.  The  purchaser,  therefore,  is  not  entitled  to  possession  until 
such  consummation  of  the  sale,  and  the  heir  or  devisee  may  as- 
sert his  title  in  ejectment  even  though  the  purchase  money  has 
been  paid  and  the  sale  confirmed.47  If  the  heir  or  devisee  dies 
before  the  delivery  of  the  deed,  even  after  confirmation,  he  dies 
seized  of  real  property  and  his  interest  devolves  as  such.48  Al- 
though the  heir  or  devisee  is  entitled  to  possession  and  judgment 
will  be  entered  for  him,  the  court  will,  to  avoid  circuity  of  action, 
direct  the  judgment  to  be  vacated  if  the  defendant  shall  settle 
with  the  executor  or  person  making  the  sale  and  receive  the  deed 
within  a  reasonable  time.49  There  is  therefore  no  alienation  until 
confirmation,  consequently  insurance  policies  are  not  avoided,  and 
an  administrator  may  sue  on  the  policy  to  the  use  of  the  vendee 
for  loss  occurring  between  the  sale  and  the  confirmation.60 

The  Incidence  of  Rights  and  Liabilities  Between  the  Parties. 

§  226.  The  general  rule  in  equity  is  that  the  vendee  is  the 
owner  of  the  property  sold  from  the  time  of  making  the  agree- 
ment of  sale,  and  the  vendor  is  merely  entitled  to  the  purchase 
money  and  the  burdens  and  benefits  of  ownership  are  adjusted 
between  them  accordingly.  The  only  circumstance  which  varies 

(47)  Leshey  v.  Gardner,  3  W.  &  S.  314  (1842);    Greenough  v.  Small, 
137  Pa.  132  (1890). 

(48)  Erb  v.  Erb,  9  W.  &  S.  147  (1845)  ;   Biggert's  Est,  20  Pa.  17  (1852). 
A.  fortiori  where  the  heir  dies  before  the  sale  is  made,  Ferree  v.  Comm., 
8  S.  &  R.  312  (1822). 

(49)  Stevenson  v.   Scott,   188  Pa.  234   (1898).     See  Smith's  Est.,   188 
Pa.  222  (1898). 

(50)  Farmers    Mutual   Ins.    Co.   v.   Graybill,    74   Pa.    17    (1873).     The 
purchaser  is  not  entitled  to  the   rents  accruing  after  final  confirmation 
and  before  execution  of  the  deed,  Strange  v.  Austin,  134  Pa.  96  (1890), 
aff.  7  Pa.  C.  C.  128  (1889).    In  this  case  the  tenant  had  paid  the  rent  to 
the  purchaser  and  it  was  held  that  this  did  not  discharge  his  debt  to  the 
heir.     Purchaser  is  not  entitled  to  recover  the  rents  from  the  accountant, 
Law's  Est,  7  Pa.  C.  C.  605  (1890). 


180  ORPHANS'  COURT  SALES.  §  227 

the  case  of  an  Orphans'  Court  sale  is  the  fact  that  the  court  which 
makes  the  sale  has  power  to  withdraw  when  an  individual  would 
be  bound  to  proceed.  But  few  cases  have  arisen  on  this  point, 
and  the  law  is  probably  the  same  in  each  case. 

In  Kayser's  Est.,51  certain  trustees  made  a  sale  subject  to 
the  approval  of  the  Orphans'  Court,  and  the  question  was  as  to 
the  liability  of  the  purchaser  to  pay  a  municipal  lien.  The  agree- 
ment called  for  a  good  and  marketable  title,  clear  of  all  encum- 
brances, and  both  parties  were  ignorant  at  the  time  of  the  con- 
templated improvement.  The  contract  for  building  the  sewer 
was  made  by  the  city  on  May  1 1 ;  the  agreement  of  sale  was 
made  May  21 ;  the  work  begun  May  27 ;  order  of  sale  made  June 
15;  work  completed  June  14;  deed  executed  and  entered  June 
23.  The  court  held  that  the  equitable  title  of  the  purchaser  vested 
in  him  May  21.  The  lien  was  from  the  time  of  the  doing  of 
the  work,  which  was  on  June  14,  subsequent  to  the  date  of  the 
agreement  of  sale,  but  before  the  execution  and  delivery  of  the 
deed.  The  title  was  free  of  encumbrance  at  the  time  of  making 
the  agreement,  and  the  burden,  therefore,  was  to  be  borne  by  the 
purchaser,  and  the  money  to  pay  the  claim,  which  had  been  re- 
tained, was  held  to  be  payable  to  the  vendor. 

Destruction  of  Buildings  by  Fire. 

§  227.  It  is  not  quite  clear  as  to  who  is  to  bear  the  loss  if 
the  improvements  on  the  premises  sold  are  destroyed  by  fire 
pending  the  completion  of  the  sale.  It  was  decided  in  Demmy's 
App.,52  that  it  was  inequitable  in  the  case  at  bar  for  the  purchaser 
to  bear  the  loss  caused  by  fire,  although  not  necessary  to  decide 
that  point,  and  that  the  remarks  of  Rogers,  J.,  in  Robb  v.  Mann,53 
that  the  loss  would  be  borne  by  the  purchaser,  should  be  disre- 
garded. 

(51)  9  D.  R.  360  (1900). 

(52)  43  Pa.  155  (1862).    The  sale  was  made  Sept.  24,  1859,  but  owing 
to  objections  of  the  widow  and  heirs,  confirmation  was  delayed  until  after 
the  fire  which  was  on  March  3,  1860.    It  was  held  that  the  purchaser  could 
refuse  to  take  the  property. 

(53)  ii  Pa.  300  (1849)  at  305.    A  third  party  took  away  certain  prop- 
erty on  the  land,  the  sale  having  been  made  January  31,  1846,  the  pur- 
chaser took  possession  April   I,   1846,  the  sale  was  confirmed  May   12, 
1846,  and  the  property  taken  away  before  April  i,  1846.    It  was  held  the 
purchaser  had  a  remedy  against  the  third  party. 


§  228       RIGHTS  PENDING  COMPLETION  OF  THE  SALE.  181 

The  occurrence  of  the  fire  is  no  ground  for  setting  aside  the 
sale.54 

There  is  a  dictum  of  Bittenger,  P.  J.,55  that  the  purchaser  must 
stand  the  loss  of  buildings  destroyed  after  the  confirmation  of 
the  sale. 

The  general  rule  in  case  of  an  agreement  of  sale  is  that  the 
vendee  is  the  owner  in  equity  the  moment  the  agreement  of  sale 
is  signed,  and  therefore  if  the  buildings  are  destroyed  by  fire 
pending  the  consummantion  of  the  transaction,  the  loss  is  his  and 
he  is  entitled  to  the  proceeds  of  insurance  policies,  if  any.58 
While  the  decisions  we  have  referred  to  are  not  altogether  clear, 
it  seems  probable  that  the  same  rule  will  apply  in  the  case  of 
Orphans'  Court  sales. 

Apportionment  of  Interest  on  Encumbrances. 

§  228.  It  seems  clear  that  at  the  settlement  if  any  ^gncumX 
brances  on  the  property  remain,  that  the  interest  thereon  should 
be  apportioned  as  of  the  date  of  settlement.  While  there  is 
some  doubt  on  this  point  as  to  the  case  of  a  ground  rent  because 
a  ground  rent  is  not  ordinarily  apportionable,  it  does  not  seem 
that  the  doubt  should  prevail  because  the  considerations  as  to 
the  apportionability  of  the  ground  rent  do  not  apply  to  the  trans- 
action between  a  vendor  and  vendee.57 

(54)  Farabee's  Est,  29  Pa.  C.  C.  334  (1904).     In  this  case  there  was 
a  rule  by  the  purchaser  to  lift  an  absolute  confirmation  of  sale.     A  fire 
had  occurred  in  the  premises  before  absolute  confirmation.     The  petition 
was  dismissed  as  the  court  said  that  the  purchaser  could  protect  himself 
by  retaining  part  of  the  purchase  price,  and  if  there  was  any  desire  to 
test  the  question,  suit  could  be  brought  in  the  Common  Pleas  for  the  bal- 
ance of  the  purchase  money  and  the  question  decided  there. 

(55)  In  Bopp's  Est.,  18  York  161   (1905). 

(56)  Reed  v.  L,ukens,  44  Pa.  200  (1863). 

(57)  In  Law's  Est.,  6  Pa.  C.  C.  647  (1889),  there  was  a  petition  by  a 
purchaser  to  revoke  an  order  of  sale  on  the  ground  that  the  testamentary 
trustee  who  had  made  the  sale  insisted  on  the  purchaser  paying  the  accru- 
ing interest  on  a  certain  mortgage.    The  petition  was  dismissed,  the  trustee 
ibeing  directed  to  make  an  allowance  at  the  settlement  with  the  purchaser  of 
the  arrears  of  interest  on  the  mortgage,  otherwise  the  decree  of  confirma- 
tion would  be  vacated.   See  remarks  of  Penrose,  J.,  in  Terry's  Est.,  13  Phila. 
298  (1879),  s.  c.  36  L.  I.  461.    This  case  arose  on  the  audit  of  account  by  ad- 
ministrator who  had  sold  under  order  of  court  for  the  payment  of  debts. 
It  .does  not  appear  under  what  act.     The  property  had  been  sold  subject 
t©  a  grpjmd  re/it  and  a  mortgage.     It  was  held  that  the  purchaser  took 


182  ORPHANS'  COURT  SALES.  §§  229,230 

Title  of  the  Purchaser. 
Preliminary. 

§  229.  The  purchaser  takes  an  equitable  title  to  the  land. 
Questions  arise  as  to  (i)  the  lien  of  judgments,  (2)  his  rights 
against  third  parties,  (3)  the  devolution  of  the  title  where  he 
dies  pending  the  completion  of  the  sale. 

Judgment  Against  Purchaser. 

§  230.  Judgments  will  frequently  be  entered  against  the  pur- 
chaser pending  the  consummation  of  the  sale,  and  the  question 
will  arise  whether  they  are  a  lien  upon  his  interest  before  he 
takes  title.  The  cases  are  as  follows: 

In  Holmes'  App.,58  there  was  a  sale  under  order  of  court  for 
payment  of  debts.  The  purchaser  paid  the  purchase  money.  Ex- 
ceptions to  the  confirmation  were  filed  by  various  parties  in  in- 
terest pending  which  certain  judgments  were  entered  against  the 
purchaser.  Subsequently  the  exceptions  were  dismissed  and  deed 
was  made  to  the  purchaser.  At  a  subsequent  sale  in  partition 
of  the  purchaser's  title  after  his  death  it  was  held  that  these 
judgments  were  first  liens  on  the  title,  the  same  as  in  the  case 
of  a  private  agreement  for  sale  of  land. 

In  Jacobs'  App.,59  there  was  an  administrator's  sale  in  parti- 
tion under  order  of  the  Orphans'  Court.  One-half  of  the  pur- 
chase money  was  to  be  paid  April  i,  1849,  and  the  rest  to  be  se- 
cured and  deed  to  be  made  when  the  other  one-half  was  to  be 
paid.  The  sale  was  confirmed  Nov.  20,  1848,  the  one-half  due 
April  i,  1849,  was  not  paid,  the  purchaser  made  final  settlement 
May  19,  1849,  and  deed  was  delivered  to  him  on  that  day,  and 
he  gave  a  judgment  bond  for  the  balance  of  the  purchase  money. 
A  judgment  was  entered  against  the  purchaser  on  April  4,  1849. 
The  property  was  subsequently  sold  under  execution  on  the  pur- 
chase money  judgment,  and  it  was  held  that  it  should  be  first  paid 
out  of  the  proceeds  of  the  sale.  The  court  said  that  the  sale  was  a 
public  sale  for  cash,  and  the  extension  of  the  time  of  payment  was 

subject  to  the  two  encumbrances,  (the  syllabus  refers  to  the  Act  of  March 
23,  1867;  no  reference  thereto  by  court,)  therefore,  accountants  should 
not  have  credit  for  arrearages  of  ground  rent  and  interest  on  mortgage 
which  had  been  allowed  in  the  settlement. 

(58)  108  Pa.  23  (1884). 

(59)  23  Pa.  477  (1854). 


§  231  JUDGMENT  AGAINST  PURCHASER.  183 

contrary  to  the  order  of  the  court  and  void,  and  therefore  the  pur- 
chaser could  not  at  that  time  enforce  the  terms  of  that  sale,  con- 
sequently he  had  no  title.  It  is  to  be  observed  that  the  sale  had 
been  confirmed  by  the  court  before  the  judgment  by  the  purchaser 
was  entered,  and  therefore  the  terms  of  the  sale  were  valid  be- 
cause ratified  by  the  court. 

In  Thompson  v.  Rogers,60  a  purchaser  at  an  administrator's 
sale  which  had  been  confirmed,  and  who  was  in  default  in  his 
payments,  made  a  parol  sale  of  the  land  to  A.,  who  paid  the  ad- 
ministrator the  rest  of  the  money.  In  the  mean  time,  a  judgment 
had  been  entered  against  the  purchaser  and  his  interest  was  sold 
under  execution  on  the  judgment  to  B.  The  administrator  then 
made  a  deed  to  the  purchaser  and  A.,  as  tenants  in  common.  A. 
brought  ejectment  against  B.  It  was  held  that  A.  had  no  title 
on  which  he  could  recover  either  under  the  parol  agreement  with 
the  purchaser  or  under  the  deed  from  the  administrator,  as  that 
deed  was  not  made  to  the  party  to  whom  the  sale  was  confirmed. 
The  judgment  was  recovered  before  the  payment  of  any  pur- 
chase money  by  A.  In  this  case,  of  course,  A.  had  no  title  at  all, 
and  the  decision  does  not  really  touch  the  effect  of  the  judgment, 
which  could  only  be  raised  in  a  controversy  between  B.  and  the 
purchaser  at  the  sale.  It  seems  that  under  these  cases  the  judg- 
ment binds  whatever  title  the  purchaser  has,  and  if,  therefore, 
he  is  in  default  he  has  no  title,  and  the  judgment  does  not  bind, 
whereas,  if  he  has  fulfilled  the  terms  of  the  agreement,  he  has 
an  equitable  title  which  ripens  into  a  legal  title  when  the  deed  is 
delivered  and  the  lien  of  the  judgment  dates  back  to  the  date  of 
agreement  of  sale. 

Rights  of  Purchaser  Against  Third  Parties. 

§  231.  After  deed  delivered,  the  purchaser  becomes  the 
owner,  as  in  every  sale,  and  entitled  to  all  rights  as  such,  and  be- 
fore the  delivery  of  the  deed,  he  is  a  vendee  and  may  assert  his 
rights  in  certain  cases  against  third  parties.61 

(60)  67  Pa.  39  (1870). 

(61)  Thus,  in  Tomlinson  v.  Trenton  and  New  Hope,  etc.,  R.  R.  Co.,  31 
Pa.  C.  C.  81   (1905),  it  was  held  that  the  purchaser  could  maintain  a  bill 
in  equity  against  a  railroad  company  to  restrain  unlawful  entry  on  the 
land  after  the  confirmation  but  before  the  delivery  of  the  deed.    In  Robb 
v.  Mann,  II  Pa.  300  (1849),  there  was  an  action  by  administrator  against 
purchaser  for  instalment  of  purchase  price,  and  there  was  a  dictum  that 


184  ORPHANS'  COURT  SALES.        §§  232, 233, 234 

Devolution  of  Purchaser's  Title. 

§  232.  The  title  of  the  purchaser,  for  the  purpose  of  devolu- 
tion under  the  intestate  laws,  dates  back  to  the  time  of  the  con- 
firmation of  the  sale.  In  Frick  Coke  Co.  v.  Laughead,62  there 
was  an  administrator's  sale  for  payment  of  debts  in  1812.  The 
purchaser  went  into  possession,  paid  part  of  the  purchase  money, 
and  died  intestate.  The  balance  of  the  purchase  money  was  paid 
by  his  administrators  who  took  the  deed  to  themselves  as  admin- 
istrators for  the  use  of  the  heirs  of  the  decedent.  It  was  held  in 
ejectment  between  those  claiming  under  the  heirs  of  the  pur- 
chaser that  the  title  was  in  him,  and  that  he  was  the  perquisitor 
for  the  purpose  of  tracing  descent,  the  title  relating  back  to  the 
confirmation  by  the  court. 

Alienation  of  Purchaser's  Title. 

§  233.  It  seems  perfectly  clear  that  the  purchaser  may  freely 
dispose  of  his  title  with  the  consent  of  the  court.  The  reason 
the  consent  of  the  court  is  necessary  is  because  the  sale  can  only 
be  consummated  by  delivery  of  the  deed  to  the  purchaser  and  the 
delivery  of  the  deed  to  another  party  will  confer  no  title.623 

Who  is  to  Execute  Deed. 

§  234.  The  deed  is  executed  under  the  order  of  the  court  and 
by  the  hand  of  the  court  acting  merely  through  the  instrumentality 
of  the  person  appointed  to  make  the  sale.  Therefore,  any  per- 
sonal disqualification  of  the  person  making  the  sale  is  immaterial, 
as,  for  instance,  the  circumstance  that  a  guardian  is  a  lunatic.63 
The  deed  is  to  be  executed  by  the  person  directed  to  make  the 
sale.64  A  number  of  statutes  have  been  past  providing  for  the 
case  of  the  death,  insanity,  removal,  etc.,  of  the  person  directed 

the  purchaser  could  maintain  action  on  the  case  and  not  trespass  against 
third  parties  who  took  away  a  building  between  the  making  of  the  sale 
and  delivery  of  the  deed. 

(62)  203  Pa.  1 68  (1902). 
(62a)   See  §  237,  post. 

(63)  Grier's  App.,   101   Pa.  412   (1882),  s.  c.  40  L.  I.  90,  30  Pitts.  L. 
J.  224,  Diet. 

(64)  In  Backenstoss  v.  Stahler's  Admrs.,  33  Pa.  251  (1859),  where  there 
was  an  administrator's  sale  under  proceedings  in  partition,  the  purchaser 
took  a  deed  from  the  widow  and  heirs,  and  it  was  held  that  it  would  have 
the  same  effect  as  if  made  by  the  administrator. 


§  234  WHO  Is  TO  EXECUTE  DEED.  185 

to  execute  the  deed.  Since  the  insanity  of  the  person  executing 
the  deed  is  immaterial  there  seems  to  be  no  occasion  for  the 
statute  unless  the  incapacity  is  sufficient  to  interefere  with  the 
actual  execution  of  the  deed.  So  also  where  there  are  several 
trustees  directed  to  make  the  sale,  the  survivors  may  execute,  and 
where  the  person  acting  buys  at  his  own  sale,  the  decree  will  be 
executed  by  the  clerk  of  the  court.65 

(65)  Section  i.  Be  it  enacted,  etc.,  That  in  all  cases  where  a  sale  of 
the  real  estate  of  a  decedent  shall  be  made  by  executors  or  administrators, 
or  guardians,  under  an  order  of  the  Orphans  Court,  if  one  or  more  of 
such  executors  or  administrators,  or  guardians,  shall  die  or  be  discharged 
before  a  conveyance  is  made  to  the  purchaser,  it  shall  and  may  be  lawful 
for  the  surviving  executor  or  executors,  administrator  or  administrators, 
as  the  case  may  be,  to  execute  and  deliver  to  the  purchaser  a  deed  of 
conveyance  for  the  estate  so  sold,  on  the  purchaser's  full  compliance  with 
the  terms  and  conditions  of  the  sale. 

Section  2.  That  in  all  cases  where  a  sale  of  the  real  estate  of  a  de- 
cedent hath  heretofore  been  made  by  executors  or  administrators,  or 
guardians,  under  an  order  of  the  Orphans'  Court,  and  one  or  more  of 
such  executors  or  administrators,  or  guardians,  hath  or  have  died  before 
a  conveyance  hath  been  made  to  the  purchaser,  it  shall  and  may  be  lawful 
for  the  surviving  executor  or  executors,  administrator  or  administrators, 
or  guardians,  as  the  case  may  be,  to  execute  and  deliver  to  the  purchaser 
a  deed  of  .conveyance  for  the  estate  so  sold,  on  the  purchaser's  full  com- 
pliance with  the  terms  and  conditions  of  sale;  that  where  authority  is  or 
shall  be  given  by  decree  of  court  to  trustees,  or  other  persons,  to  sell 
real  estate,  and  any  such  trustees  or  other  persons  authorized,  shall  have 
died,  resigned  or  ceased  to  act,  before  a  sale  is  effected  or  a  deed  exe- 
cuted, in  all  such  cases  sales  may  be  effected  and  a  deed  executed  by  the 
surviving  or  succeeding  trustee  or  trustees,  or  other  persons,  with  as  full 
effect,  in  all  particulars,  as  if  effected  or  executed  by  the  persons  acting 
in  the  trust,  or  other  office,  at  the  time  a  sale  was  originally  decreed.  Every 
deed  made  in  pursuance  of  and  agreeably  to  the  provisions  of  this  act, 
shall  vest  the  property,  therein  described,  in  the  grantee,  as  fully  and 
effectually  as  if  the  same  had  been  made  by  all  the  persons  who  may  have 
sold  any  such  estate  circumstanced  as  aforesaid.  Act  of  May  i,  1861, 
P.  L.  431- 

Section  i.  Be  it  enacted,  etc.,  That  whenever  any  Orphans'  Court  or 
Court  of  Common  Pleas,  having  authority  under  existing  laws  to  decree 
a  sale  of  real  estate,  shall  issue  an  order  to  any  executor,  administrator, 
guardian  or  trustee,  either  specially  appointed  for  the  purpose  or  other- 
wise, to  sell  such  real  estate,  and  shall  confirm  such  sale,  and  such  admin- 
istrator, executor,  guardian  or  trustee  shall  die  before  the  execution  of  a 
deed  to  such  purchaser,  the  proper  court  shall  have  power,  on  the  petition 
of  the  purchaser,  to  direct  the  clerk  of  such  court  to  execute  and  deliver 
to  the  purchaser  the  necessary  deed  of  conveyance  for  such  real  estate, 

13 


186  ORPHANS'  COURT  SALES.  §  235 

Endorsing  Decree  on  Deed. 

§  235.  It  was  formerly  the  practice  among  many  convey- 
ancers to  have  a  certified  copy  of  the  decree  endorsed  on  the 

on  his  full  compliance  with  the  terms  and  conditions  of  sale,  paying  into 
court  the  moneys  payable  and  delivering  to  the  clerk  the  securities  re- 
quired by  the  said  terms  and  conditions,  which  moneys  and  securities 
shall  remain  subject  to  the  disposition  of  the  court,  and  said  deed  shall 
be  valid  and  available  to  such  purchaser,  as  fully  as  if  it  had  been  executed 
and  delivered  by  the  proper  administrator,  executor,  guardian  or  trustee 
under  existing  laws. 

Section  2.  That  whenever  any  Orphans'  Court  or  Court  of  Common 
Pleas,  having  jurisdiction  to  decree  a  sale  of  real  estate,  shall  issue  its 
order  to  any  administrator,  guardian,  executor  or  trustee,  specially  ap- 
pointed for  the  purpose,  or  otherwise,  to  sell  such  real  estate,  and  shall 
in  any  case  within  its  jurisdiction  give  authority  to  any  administrator, 
executor,  guardian  or  trustee  to  bid  at  such  sale,  and  said  court  shall 
confirm  the  sale  of  said  real  estate  to  such  administrator,  executor,  guard- 
ian or  trustee,  the  said  court  may  make  an  order  directing  its  clerk  to 
execute  a  deed  for  said  real  estate  to  such  purchaser,  who  shall  account 
for  the  amount  of  such  purchase  money,  in  the  settlement  of  his  ac- 
counts with  the  register  of  wills,  to  said  Orphans'  Court  or  Court  of  Com- 
mon Pleas,  as  the  case  may  be. 

Section  3.  That  whenever  any  Orphans'  Court  or  Court  of  Common 
Pleas,  shall  have  heretofore  made  an  order  for  its  clerk  to  execute  a 
deed  in  any  of  the  cases  mentioned  and  provided  for  in  the  first  and  sec- 
ond sections  of  this  act,  and  such  deed  shall  have  been  accordingly  exe- 
cuted and  delivered,  such  deed  shall  be  valid  and  available  to  the  pur- 
chaser to  vest  in  him  the  right,  title  and  interest  of  the  person  as  whose 
land  the  said  real  estate  had  been  sold.  Act  of  May  22,  1878,  P.  L.  83. 

Where  real  estate  is  ordered  sold  in  proceedings  in  partition  and  (i) 
there  shall  be  no  executor  or  administrator  to  execute  the  order,  (2)  ex- 
ecutor or  administrator  shall  neglect  or  refuse  to  execute,  the  court  may 
appoint  some  suitable  trustee  to  make  the  sale  who  shall  proceed  as  execu- 
tor or  administrator  would :  Act  of  February  24,  1834,  P.  L.  70,  Sec.  44. 

The  Act  of  April  19,  1901,  P.  L.  83,  provides:  Section  i.  Be  it  en- 
acted, etc.,  That  in  any  proceedings  at  law  or  in  equity,  in  any  of  the  courts 
of  this  Commonwealth  having  jurisdiction,  if  the  said  court  shall  order 
a  conveyance  to  be  executed  by  either  of  the  parties  to  the  said  proceed- 
ing or  his  or  her  interest  in  any  lands  or  tenements  to  any  other  party  or 
person,  and  the  party  so  ordered  shall  neglect  or  refuse  to  comply  with  the 
said  order  and  make  the  said  conveyance,  or  shall  die,  flee  the  jurisdiction, 
or  become  insane  without  having  complied  therewith,  it  shall  be  lawful 
for  the  said  court  to  order  and  direct  that  such  conveyance  be  made  by 
the  sheriff,  prothonotary  or  clerk,  or  by  a  trustee  specially  appointed  for 
that  purpose;  and  the  said  conveyance  having  been  duly  executed  by  the 
said  sheriff,  prothonotary,  clerk  or  trustee,  and  acknowledged  in  open 


§  236      ACKNOWLEDGMENT  AND  RECORDING  OF  DEED.          187 

deed.66  The  advantage  of  this  was  that  if  the  Orphans'  Court 
record  should  be  destroyed  or  lost,  the  decree  itself  or  the  record 
thereof  would  bear  evidence  of  the  action  of  the  court.  This 
practice  has  fallen  into  disuse,  and  the  deed  under  the  decree  now 
generally  merely  recites  the  proceedings  in  the  Orphans'  Court, 
and  it  is  very  seldom  that  a  certified  copy  of  the  decree  is  asked 
for.  There  is  no  harm  in  having  it  done,  but  there  does  not  seem 
to  be  any  particular  advantage  in  going  to  the  extra  expense  and 
trouble. 

Acknowledgment  and  Recording  of  Deed. 

§  236.  The  Price  Act  requires  the  deed  or  mortgage  to  be 
acknowledged  in  court.67  There  seems  to  be  no  reason  why  the 
deed  or  mortgage  should  be  acknowledged  before  the  court  or 
why  the  general  law  as  to  acknowledgment  of  deeds  and  mort- 
gages should  not  apply.  It  has  been  accordingly  provided  by  the 
amendment  of  April  22,  I9O3,68  that  the  deeds,  mortgages  or 
leases  made  in  pursuance  of  the  provisions  of  the  act  may  be  ac- 
knowledged by  a  justice  of  the  peace,  notary  public  or  other  of- 
ficer having  authority  under  the  laws  of  the  state  to  take  ac- 
knowledgments or  deeds  and  other  instruments  of  writing  therein. 
The  only  obscurity  here  is  as  to  the  meaning  of  the  word 

court,  shall  be  good  and  effective  to  convey  the  interest  of  the  recusant, 
neglecting,  deceased,  persons  fleeing  the  jurisdiction,  or  insane  party,  to 
the  extent  ordered  by  the  court,  the  same  as  if  it  had  been  duly  executed 
and  delivered  by  such  party  personally:  Provided,  That  this  shall  not 
prevent  the  said  court  from  punishing  the  contempt  of  the  said  party  by 
fine  and  imprisonment,  if  deemed  necessary:  Provided  further,  That  no 
such  order  shall  be  made,  in  case  of  the  decease  of  such  party,  until  notice 
shall  have  been  given  to  his  or  her  heirs  and  legal  representatives,  by 
process  duly  served,  if  resident  within  the  Commonwealth,  or,  if  not,  by 
publication  and  copy  mailed  to  the  last  known  address  of  the  same,  ac- 
cording as  the  court  shall  order  and  direct. 

Section  2.  This  act  shall  apply  to  any  proceeding  in  which  the  court 
shall  have  heretofore  ordered  such  conveyance  to  be  executed,  as  well  as 
to  any  in  which  it  shall  hereafter  be  ordered. 

(66)  See  Jermon  v.  Lyon,  81  Pa.  107  (1876),  see  bottom  of  p.  108. 

(67)  The  provisions  of  the  act  are  as   follows:    Sec.  4.     Such  sales, 
etc.,  shall  be  under  the  direction  and  subject  to  the  approval  of  the  court 
before  which  the  deed  shall  be  acknowledged,  and  be  certified  under  seal 
to  have  been  acknowledged. 

(68)  P.  L.  241,  see  Appendix  A.,  n.  64.    This  act  amends  and  extends 
certain  previous  amendments  which  are  cited  in  the  appendix. 


1 88  ORPHANS'  COURT  SALES.  §  237 

"therein."  Does  it  apply  to  the  lands  and  tenements  or  does  it 
apply  to  officers  taking  the  acknowledgments  within  the  state.  If 
the  latter,  then  it  is  clear  that  no  deed  or  mortgage  executed 
under  the  provisions  of  the  act  may  be  acknowledged  outside  of 
the  state.  If  the  word  "therein"  only  refers  to  the  real  estate 
it  seems  that  such  instruments  may  be  acknowledged  in  accord- 
ance with  the  law  generally  prevailing  with  respect  to  acknowl- 
edgments outside  of  the  state.  The  case  does  not  often  arise  be- 
cause the  party  making  the  deed  generally  is  the  one  who  gives 
the  security  and  is  therefore  right  at  hand  to  make  the  acknowl- 
edgment in  the  county  or  within  the  state.  Although  the  Price 
Act  does  not  so  provide,  it  is  clear  that  the  deed  is  to  be  recorded 
in  the  recorder's  office  of  the  county  where  the  lands  lie. 

Deed  Must  Conform  to  the  Decree  of  the  Court. 

§  237.  The  deed  must  conform  to  the  decree  of  the  court, 
whether  an  order  of  sale  or  a  confirmation  as  to  premises,  terms 
and  purchaser.  The  return  of  the  sale  or  the  order  of  sale  may 
be  amended  before  deed  is  delivered  by  substituting  another  pur- 
chaser, as  was  done  in  Brennan's  Estate,09  and,  in  "like  manner, 
where  a  sale  has  been  confirmed,  there  is  no  doubt  that  in  a 
proper  case  the  court  will  amend  the  decree  before  the  delivery 
of  the  deed.  If  a  deed  is  made  to  a  person  other  than  the  pur- 
chaser specified  in  the  decree,  no  title  will  pass.70  Since,  how- 
ever, the  jurisdiction  of  the  court  only  extends  to  real  estate,  any 
reference  to  personal  property  in  the  deed  is  to  be  determined  by 
principles  other  than  those  applicable  to  an  Orphans'  Court  sale.71 

(69)  220  Pa.  232  (1908). 

(70)  Thompson  v.  Rogers,  67  Pa.  39  (1871). 

(71)  In  Backenstoss  v.  Stahler's  Admr.,  33  Pa.  251   (1859),  there  was 
an  administrator's  sale  under  proceedings  in  partition,  and  it  appeared 
that  there  was  a  reservation  of  the  growing  crops  made  at  the  sale  but  no 
reservation  of  them  in  the  deed.    The  administrator  subsequently  brought 
trover  against  the  purchaser  for  the  growing  crops  and  it  was  held  that 
he  could  recover  since  the  purchaser  had  consented  at  the  sale  to  the  reser- 
vation, and  since  that  reservation  was  as  to  personal  property,  it  was 
competent  for  the  parties  to  make  a  variation  without  obtaining  the  con- 
sent of  the  Orphans'  Court  thereto. 


§§  240,  241          COLLATERAL  ATTACK.  189 


CHAPTER  16. 

Collateral  Attack. 

Preliminary    §  240 

Former  law  as  to  decrees  of  the  Orphans'  Court §  241 

Present  law  as  to  decrees  of  the  Orphans'  Court §  242 

Decree  valid  notwithstanding  irregularities   .- §  243 

Decree  may  be  impeached  by  party  in  interest  without  notice  ...  §  244 

Decree  conclusive  of  facts  set  out  in  the  record   §  245 

Party  in  interest  who  had  notice  cannot  impeach   §  246 

Where  record  does  not  show  that  the  court  had  jurisdiction,  the 

decree  may  be  impeached  §  247 

Fact  that  there  is  no  decree  may  be  set  up  in  a  collateral  action  §  248 

Parol  evidence  to  vary  or  explain  proceedings    §  249 

Fraud   §  250 

Mistake          i 

Preliminary    §  251 

Unilateral    §  252 

Mutual   §  253 

Statement  of  the  law  in  Pennsylvania  as  to  collateral  attack  upon 

Orphans'  Court  sales   §  254 

.Preliminary  Discussion  of  Collateral  Attack. 

§  240.  The  Price  Act  provides  that  the  title  of  the  purchaser 
shall  be  indefeasible  by  any  person  having  a  present  or  ex- 
pectant interest,  and  be  unprejudiced  by  any  error  in  the  pro- 
ceedings. This  provision  of  the  act  must  be  read  in  conjunction 
with  the  general  law  governing  the  validity  of  Orphans'  Court 
sales,  and  in  the  light  of  the  principle  that  the  Orphans'  Court 
is  a  court  of  limited  jurisdiction  and  outside  of  this  jurisdiction 
its  decrees  have  no  force  whatever.1  The  true  application  of  this 
section  may  therefore  best  be  discovered  by  considering  together 
the  cases  on  collateral  attack  on  Orphans'  Court  decrees  whether 
arising  under  the  Price  Act  or  some  other  act.  These  cases  may 
be  arranged  under  the  following  headings : 

Former  law  as  to  Decrees  of  the  Orphans'  Court. 

§  241.  The  decrees  of  the  Orphans'  Court  were  formerly  con- 
sidered to  be  of  a  nature  inferior  to  the  decree  or  judgment  of  a 

(i)  See  §  13,  ante. 


190  COLLATERAL   ATTACK.  §§  242, 243 

court  of  record,  and  consequently  were  frequently  examined  and 
set  aside  on  very  slight  grounds  in  collateral  proceedings.2 

Present  Law  as  to  Decree  of  the  Orphans'  Court. 

§  242.  The  Act  of  March  29,  i832,3  establishes  the  Orphans' 
Court  as  a  court  of  record,  and  provides  that  its  proceedings  and 
decrees  as  to  all  matters  within  its  jurisdiction  shall  not  be  re- 
versed or  avoided  collaterally  in  any  other  court  but  shall  be 
liberal  to  reversal  anly  on  appeal,  since  which  act  the  early  rule 
no  longer  obtains.  The  decree  of  the  Orphans'  Court  may,  how- 
ever, still  be  set  aside  in  a  collateral  proceeding,  and  it  is  of  great 
importance  to  know  what  the  law  is  on  this  subject. 

Decree  Valid  Notwithstanding  Irregularities. 

§  243.  The  decree  of  the  Orphans'  Court  authorizing  a  sale 
will  be  held  conclusive  in  an  action  of  ejectment  notwithstanding 
irregularities  in  the  proceedings  for  the  sale.4 

(2)  The  early  view  is  illustrated  by  the  case  of  Huckle  v.  Phillips,  2 
S.  &  R.  4  (1815),  where  an  action  of  ejectment  was  brought  by  the  heirs 
of   a   decedent  against   defendant   claiming  under  Orphans'   Court   sale, 
which  action  was  brought  twenty-five  years  after  the  sale.    The  judge  left 
it  to  the  jury  to  say  (which  was  affirmed  on  appeal)  whether  there  was 
sufficient  ground  for  the  exercise  of  the  equitable  jurisdiction  of  the  court 
in  ordering  a  sale  on  the  ground  of  insufficiency  of  debts,  and  to  raise 
money  to  educate  a  minor  child.     See  also  Lessee  of  Snyder  v.  Snyder, 
6  Binney  483  (1814).    As  to  proof  of  Orphans'  Court  sale,  see  Rahm  v. 
North,  2  Yeates  117  (1796),  suit  for  purchase  money;   Huckle  v.  Phillips, 
2  S.  &  R.  4  (1815)  ;   M'Donald  v.  Campbell,  2  S.  &  R.  473  (1816). 

(3)  P.  L.  190,  Sec.  2.    The  provisions  of  the  act  are  as  follows :   "The 
Orphans'  Court  is  hereby  declared  to  be  a  Court  of  Record,  with  all  the 
qualities  and  incidents  of  a  Court  of  Record  at  common  law;    its  pro- 
ceedings and  decrees,  in  all  matters  within  its  jurisdiction,  shall  not  be 
reversed  or  avoided  collaterally  in  any  other  court,  but  they  shall  be  liable 
to  reversal,  modification,  or  alteration,  on  appeal  to  the  Supreme  Court, 
as  hereinafter  directed." 

(4)  Decree  held  conclusive  in  these  cases :    Klingensmith  v.   Bean,  2 
Watts  486  (1834),  sale  made  after  the  term  to  which  the  order  was  re- 
turnable.    Dixcy's  Exrs.  v.  Laning  &  Sill,  49  Pa.  143   (1865),  failure  to 
enter  bond.     Lockhart  v.  John,  7  Pa.  137  (1847),  failure  to  enter  bond. 
Painter  v.  Henderson,  7  Pa.  48   (1847),  where  there  was  an   error  in 
partition  proceedings,  to-wit,  assignment  of  land  to  widow  at  valuation 
when  act  of  assembly  allowed  assignment  to  heirs  only.    Fox  v.  Winters, 
4  Rawle  174   (1833),  no  final  account  confirmed.     Snyder  v.  Markel,  8 
Watts  416   (1839),  accord.     See,  however,  L/essee  of  Larimer  v.  Irwin, 


§  243  IRREGULARITIES.  191 

In  Potts  v.  Wright,5  there  was  an  administrator's  sale  under 
pluries  order  of  the  Orphans'  Court  and  the  purchaser,  brought 
ejectment  against  the  heirs  twenty  years  after  the  sale.  The 
heirs  contended  in  defence  (i)  fraud  between  administrator 
and  purchaser  of  which  there  was  no  proof,  (2)  adverse  posses- 
sion of  defendant,  (3)  Orphans'  Court  had  no  jurisdiction  to 
decree  an  alias  or  pluries  order  to  sell  until  decree  of  con- 
firmation of  first  sale  was  set  aside.  (This  point  not  passed 
on  in  Supreme  Court.)  (4)  Administrator  filed  no  bond.  Judg- 
ment for  defendant  in  court  below  was  reversed  on  appeal,  the 
Supreme  Court  saying  all  irregularities  were  cured  by  the  decree 
which  could  not  be  impeached. 

In  West  v.  Cochran,6  a  mortgage  of  minor's  interest  in  real 
estate  was  made  by  guardian.  In  an  action  of  ejectment  by  the 
mortgagee  it  was  held  that  the  mortgage  was  valid  under  the 
Act  of  1853,  even  though  a  prior  order  to  an  administrator  c.  t. 
a.  to  sell  the  same  premises  was  opened  and  undetermined,  and 
even  though  the  guardian's  petition  contained  no  description  of 
the  real  estate  and  no  list  of  creditors  was  annexed,  as  this  omis- 
sion was  supplied  by  reference  to  the  prior  proceedings.  The 
interest  of  the  minor  was  subject  to  debts  of  a  decedent,  and  the 
mortgage  was  to  raise  money  to  pay  off  these  debts. 

In  Templeton  v.  Lehigh  &  Wilkes-Barre  Coal  Co.,7  the  plain- 
tiffs, who  claimed  under  the  decedent,  brought  an  action  of  eject- 
ment against  the  purchaser  at  an  administrator's  sale  under  a  pri- 
vate Act  of  April  2,  1853,  P.  L.  285.  The  purchaser  was  a  rail- 
road company  who  had  bought  a  right  of  way.  Although  no  re- 
lease or  deed  for  the  right  of  way  was  found,  judgment  was  en- 
tered for  the  defendant.  Suit  was  brought  here  fifty  years  after 
the  sale,  and  the  court  said  that  the  fact  that  no  deed  was  de- 
livered was  immaterial,  the  money  having  been  paid. 

4  Binney  104  (1798),  contra,  criticized  by  Duncan,  J.,  in  McPherson  v. 
Cunliff,  ii  S.  &  R.  422  (1824),  and  explained  by  Tilghman,  C.  J.,  in  Huckle 
v.  Phillips,  2  S.  &  R.  4  at  7  (1815). 

(5)  82  Pa.  498  (1876),  s.  c.  34  L.  I.  148,  24  Pitts.  I,.  J.  125,  5  Law 
Times  O.  S.  35,  9  Lane.  Bar  14. 

(6)  104  Pa.  482   (1884),  s.  c.  sub.  nom.  West  v.  Cochrane,  41  L.  I. 
330,  31  Pitts.  L.  J.  373- 

(7)  50  Super.  Ct.  341    (1912). 


192  COLLATERAL  ATTACK.          §  244 

Party  in  Interest  Without  Notice  May  Impeach. 

§  244.  The  law  is  also  clear  that  a  party  in  interest  who 
has  had  no  notice  of  the  proceedings  may  impeach  the  decree  in 
a  collateral  action.  This  principle  applies  to  the  Common  Pleas 
as  well  as  to  the  Orphans'  Court. 

In  McPherson  v.  Cunliff,8  where  the  decedent  died  leaving 
children  supposed  to  be  legitimate,  and,  on  that  assumption, 
guardians  were  appointed  who  made  an  Orphans'  Court  sale  for 
support  and  maintenance.  Twenty  years  later  one  of  the  illegiti- 
mates discovered  the  legitimate  children  and  procured  a  convey- 
ance of  their  interest,  and  it  was  held  that  he  could  not  recover 
in  ejectment  against  the  purchaser.  Non  constat,  however,  that 
they  could  not  have  recovered.  The  plaintiff  obtained  the  con- 
veyance for  a  very  small  sum  and  the  lot  had  valuable  improve- 
ments put  there  by  the  defendant,  and  it  is  clear  that  it  was  in- 
equitable and  unjust  for  him  who  had  been  a  party  to  the  sale  to 
contest  its  validity  on  the  ground  of  a  right  which  he  had  after- 
wards acquired. 

In  McKee  v.  McKee,9  a  petition  was  presented  by  a  purchaser 
to  decree  specific  performance  of  a  parol  contract  for  the  pur- 
chase of  land  made  with  the  decedent,  which  petition  might  be 
construed  as  under  the  Act  of  February  24,  i834,10  The  decree 
of  the  court  was  not  in  accordance  with  the  provisions  of  the 
statute  and  no  notice  was  given  to  the  heirs  of  the  decedent.  The 
purchaser  took  no  title  and  consequently  the  heirs  of  the  intestate 
succeeded  in  an  action  of  ejectment  against  him.11 

In  Taylor  v.  Hoyt,12  there  was  an  action  of  ejectment,  by  a 
tenant  in  common  who  had  been  absent  and  not  notified  of  the 
proceedings,  against  a  purchaser  at  the  sale,  proceedings  being 
under  the  Price  Act,  and  judgment  was  entered  for  the  plaintiff. 

In  Spencer  v.  Jennings,13  ejectment  was  brought  by  heirs 
against  purchaser  at  sheriff's  sale  who  had  bought  under  pro- 
ceedings on  a  mortgage  executed  under  order  of  the  Orphans' 
Court.  The  proceedings  to  mortgage  had  been  intended  to  be 

(8)  ii  S.  &  R.  422  (1824). 

(9)  14  Pa.  231  (1850). 

(10)  P.  I,.  70. 

(11)  See  58  U.  of  Pa.  Law  Rev.  455. 

(12)  15  Atl.  Rep.  892  (1888),  s.  c.  2  Mona.  206. 

(13)  114  Pa.  618  (1886),  s.  c.  19  W.  N.  C.  10,  44  L.  I.  230,  34  Pitts. 
L.  J.  243,  123  Pa.  184  (1889),  139  Pa.  198  (1890). 


§  244  NOTICE.  193 

under  the  Act  of  1853  but  were  not  correctly  drawn  either  under 
that  act  or  the  Act  of  1832.  The  mortgage  which  was  for  $700. 
was  foreclosed  and  the  widow  received  over  $2,000  from  the 
proceeds  of  the  sale  after  paying  the  amount  of  the  mortgage. 
The  mortgage  was  executed  by  the  widow  individually,  and  the 
Orphans'  Court  proceedings  were  merely  referred  to  in  the  body 
of  the  mortgage.  The  court  said  that  if  the  court  had  no  juris- 
diction upon  the  petition  of  the  administratrix,  which  it  did  not 
have,  it  had  no  jurisdiction  to  appoint  a  guardian  ad  litem,  and 
the  children  were  therefore  not  in  court,  consequently  had  no 
notice  of  the  sale,  and  their  interest  was  not  properly  divested. 
This  is  the  real  ground  of  decision.  Furthermore,  the  minors  re- 
ceived no  benefit  of  the  sale  and  the  widow  ran  away  with  nearly 
the  entire  proceeds.14 

In  Grindrod's  Estate,15  where  a  sale  had  been  made  to  bar 
contingent  remainders,  a  minor  who  had  failed  to  receive  notice 
petitioned  to  have  the  sale  set  aside  on  that  ground,  and  the  pe- 
tition was  refused,  the  court  saying  that  the  remedy  was  by 
ejectment  against  the  purchaser. 

In  Perrine  v.  Kohr,16  ejectment  was  brought  by  legitimate  chil- 
dren against  purchasers  at  partition  sale  under  proceedings  insti- 
tuted by  illegitimate  children,  and  of  which  the  plaintiffs,  the  le- 
gitimate children,  had  no  notice.  Proceedings  were  in  the  Or- 
phans' Court  and  judgment  was  entered  for  the  plaintiffs.  The 
record  did  not  disclose  the  illegitimacy  of  the  petitioners  in  the 
Orphans'  Court  proceedings. 

In  Mitchell  v.  Spaulding,17  ejectment  by  purchaser  at  sale  by 
committee  of  a  lunatic  under  proceedings  in  the  Common  Pleas.18 
No  notice  was  given  to  the  next  of  kin,  and  it  was  held  that  the 
sale  was  void  and  no  title  passed.  After  thirty  years,  however, 
the  record  of  the  proceedings  being  lost,  notice  to  the  contingent 
remaindermen  will  be  presumed  and  judgment  will  be  entered 
for  the  defendant  in  an  action  of  ejectment  by  them  against  the 
purchaser's  title.19 

(14)  See  remarks  of  Clark,  J.,  in  123  Pa.  124  (1895). 

(15)  140  Pa.  161   (1891). 

(16)  20  Super.  Ct.  36  (1902). 

(17)  20  Super.  Ct.  296  (1902). 

(18)  Under  the  Act  of  June  13,  1836,  P.  L.  592,  Sees.  22,  24. 

(19)  Smith  v.   Schwarz,  209  Pa.  79    (1904).     This  was  an  action  of 
ejectment   by  contingent  interests  barred  by  the   sale  against  the  pur- 


194  COLLATERAL  ATTACK.  §  245 

So  also  proceedings  in  partition  in  the  Orphans'  Court  are 
void  as  against  parties  who  have  had  no  notice,  which  defect  may 
be  set  up  in  collateral  action  of  ejectment,21  and  the  proceedings 
will  be  opened  and  the  decree  set  aside  on  proper  application.22 

In  Bennett  v.  Hayden,23  there  was  a  sale  of  the  real  estate 
of  a  lunatic  under  the  Act  of  June  13,  i836,2*  which  was  void  for 
want  of  notice  to  the  heirs  of  the  lunatic,  and  it  was  held  that 
the  widow  and  heirs  could  succeed  in  an  action  of  ejectment 
against  the  purchaser. 

Decree  Conclusive  of  Facts  Set  Out  in  Eecord. 

§  245.  The  decree  of  the  Orphans'  Court,  furthermore,  is 
conclusive  of  all  facts  set  out  in  the  decree  or  necessarily  found 
by  the  entering  thereof,  and  no  evidence  can  be  introduced  in  the 
collateral  proceeding  to  impeach  the  decree  on  that  ground.  This 
principle  is  illustrated  by  as  number  of  cases,  as  follows : 

In  Selin  v.  Snyder,  25  there  was  ejectment  by  the  heirs  of  a 
decedent  against  a  purchaser  at  Orphans'  Court  sale.  The  rec- 
ords show  that  all  administrators  had  petitioned  for  the  sale,  and 
it  was  held  that  evidence  could  not  be  introduced  to  impeach  the 
record  and  show  that  one  of  the  administrators  was  never  con- 
sulted and  never  consented  to  the  sale  of  the  land,  and  therefore 
the  action  of  ejectment  failed. 

In  Morrison  v.  Nellis,26  ejectment  was  brought  by  the  heirs 
against  defendant  claiming  under  the  purchaser  at  an  Orphans' 
Court  sale.  The  sale  was  by  the  guardian,  the  petition  setting 
out  the  nature  of  the  title  to  the  minor's  interest  in  one-half  of 
the  lot,  that  it  would  be  to  the  interest  of  said  minors  to  sell  the 
same,  that  a  co-tenant  had  offered  a  certain  sum  which  the  pe- 

chaser.  The  papers  in  the  case  had  been  lost,  and  it  was  presumed  that 
notice  was  given  and  that  the  proceedings  were  regular.  See  McGuirk  v. 
Friel,  9  Del.  Co.  22  (1906),  where  the  record  did  not  show  legal  notice, 
but  the  court  found  there  was  actual  notice.  Ejectment  brought  twenty 
years  after  the  sale. 

(21)  Messinger  v.  Kintner,  4  Binney  97  (1811)  ;    Richards  v.  Rote,  68 
Pa.  248  (1871). 

(22)  Swan's  Est,  238  Pa.  430  (1913). 

(23)  145  Pa.  586  (1892). 

(24)  P.  L.  589,  Sees.  22,  24. 

(25)  7  S.  &  R.  166  (1821). 

(26)  115  Pa.  41   (1887),  s.  c.  19  W.  N.  C.  20,  44  L.  I.  187,  34  Pitts. 
L.  J.  274,  14  Lane.  L.  R.  96. 


§  245        DECREE  CONCLUSIVE  OF  FACTS  IN  RECORD.  195 

titioner  regarded  as  a  reasonable  price,  and  better,  under  the  cir- 
cumstances, than  could  be  obtained  at  private  sale.  Judgment 
was  entered  for  the  defendant,  the  sale  passing  a  good  title. 
The  question  whether  the  sale  was  actually  for  the  interest  of 
the  minor  was  for  the  Orphans'  Court,  and  their  judgment  there- 
on was  conclusive. 

In  Sager  v.  Mead,27  ejectment  was  brought  by  heirs  of  the 
intestate  against  the  purchaser  at  Orphans'  Court  sale  sixteen 
years  after  the  sale,  which  was  for  the  payment  of  debts  of  the 
decedent.  The  contention  was  that  the  sale  was  not  necessary 
and  that  the  land  was  sold  for  less  than  its  actual  value.  The 
allegations  were  not  proved  and  judgment  was  for  the  defendant. 
It  is  apprehended  that  in  this  case,  even  if  the  allegations  were 
proved  the  heirs  could  not  succeed.  The  decree  of  the  court 
was  conclusive  as  to  these  points. 

In  Grubb  v.  Galloway,28  there  was  an  administrator's  mort- 
gage for  the  payment  of  debts,  and  an  averment  in  the  petition 
(i)  that  the  decedent  died  within  the  time  fixed  for  the  lien  of 
the  debts,  which  averment  was  false,  (2)  of  the  existence  of 
debts.  It  was  held  in  subsequent  proceedings  by  the  mortgagee 
upon  the  mortgage  that  the  decree  was  a  .conclusive  adjudication 
of  the  fact  of  death  within  the  time  prescribed,  and  that  the 
decree  could  not  be  attacked  on  the  ground  that  the  schedule  of 
debts  in  the  petition  exhibited  such  looseness  or  irregularity  as 
to  put  the  mortgagee  upon  inquiry  as  to  the  actual  facts.  It  ap- 
peared, however,  that  the  amount  of  money  borrowed  on  the 
mortgage  was  not  needed  to  pay  the  debts,  and  the  proceeds  of 
the  mortgage  were  used,  with  the  consent,  knowledge  and  par- 
ticipation of  the  mortgagee,  in  paying  claims  which  were  invalid 
against  the  decedent.  Mitchell,  J.,  who  delivered  the  opinion  in 
the  Supreme  Court,  paid  no  attention  to  these  circumstances,  and 
on  this  ground  the  decision  is  open  to  serious  objection.  The 
heirs  had  no  notice,  which  notice  was  not  required  by  statute, 
and  the  Supreme  Court  went  on  the  ground  that  the  decree  of 
the  Orphans'  Court  was  a  conclusive  adjudication  that  the  debts 
were  the  debts  of  the  decedent,  and  that  the  mortgagee  was  justi- 
fied in  relying  on  that  in  paying  out  the  money.29 

(27)  171  Pa.  349  (1895). 

(28)  203  Pa.  236  (1902). 

(29)  See  §  45,  ante. 


196  COLLATERAL  ATTACK.  §  245 

In  Swift  v.  Harbison-Walker  R.  C.,30  the  title  had  been  ac- 
quired by  deed.  Proceedings  were  under  the  Price  Act  in  the 
Common  Pleas.  A  bill  was  filed  by  parties  evidently  having  con- 
tingent remainders  against  the  purchaser  at  the  sale.  It  does  not 
appear  how  the  title  could  be  drawn  in  question  in  this  proceed- 
ing in  equity.  Leaving  that  aside,  the  plaintiffs  had  no  standing 
because  the  contingency  upon  which  they  were  to  take  had  not 
yet  happened  so  that  even  if  the  sale  were  void  they  would  have 
no  claim.  The  case  was  one  of  a  sale  to  bar  contingent  remain- 
ders. The  court  also  said  that  the  case  arising  25  years  after 
the  decree  of  sale,  it  must  be  assumed,  in  the  absence  of  anything 
to  the  contrary  disclosed,  that  the  court  performed  the  duties  of 
investigation  imposed  by  the  act  and  required  the  petitioners  to 
comply  with  the  provisions  of  the  statute. 

In  Gallaher  v.  Collins,31  an  action  of  ejectment  was  brought 
by  the  purchaser  at  Orphans'  Court  sale  for  the  payment  of 
debts  against  son  of  the  decedent  in  possession.  Defendant 
claimed  that  the  sale  was  void  because  there  were  no  debts,  as 
he  had  arranged  to  take  up  the  debt  for  payment  of  which  the 
sale  was  made.  His  arrangement,  however,  was  made  without 
knowledge  of  the  parties  that  it  was  to  have  such  an  effect,  and 
he  had  failed  to  object  to  the  confirming  of  the  sale  of  which  he 
had  notice.  Judgment  was  entered  for  the  plaintiff. 

In  Cierlinski  v.  Railways,32  ejectment  was  brought  by  the 
guardian  of  a  minor  child  for  land  which  had  been  set  out  to 
the  widow  as  part  of  her  exemption.  Defendant  claimed  under 
the  widow's  title.  Judgment  was  entered  for  the  defendant.  The 
widow  had  remarried  and  thus  lost  her  right  to  the  exemption, 
and  the  fact  of  her  remarriage  was  set  in  the  petition  for  ex- 
emption. The  Orphans'  Court  decree  was  conclusive  of  all  facts, 
the  determination  as  to  her  remarriage  was  final  and  conclusive. 
Under  this  case,  if  the  court  should  erroneously  find  the  date  of 
the  death  of  the  decedent,  that  fact  would  be  conclusive  and  the 
heirs  would  have  no  remedy. 

In  Patchin  v.  Seward  Coal  Co.,33  a  sale  was  made  under  the 
order  of  the  Common  Pleas  of  Westmoreland  County  of  land 

(30)  228  Pa.  584  (1910). 

(31)  7  Watts  552  (1838). 

(32)  225  Pa.  312  (1909). 

(33)  226  Pa.  159  (1910). 


§  246  PARTY  IN  INTEREST  WITH  NOTICE.  197 

in  that  county  upon  petition  of  the  committee  of  a  lunatic  resi- 
dent of  Clearfield  County  where  he  had  been  declared  a  lunatic, 
and  the  committee  was  appointed,  to  which  court  petition  was 
first  presented  for  an  order  to  sell.  The  sale  was  for  the  pay- 
ment of  debts  and  the  maintenance  of  the  family  of  the  lunatic. 
Ejectment  was  brought  seventeen  years  after  the  sale  by  the 
heirs  of  the  lunatic  against  the  purchaser's  title,  and  it  was  held 
that  judgment  should  be  given  for  the  defendant.  The  irregu- 
larities which  were  said  to  exist,  and  which  might  justify  setting 
the  sale  aside  could  not  be  set  up  in  a  collateral  proceeding,  and 
evidence  was  need  inadmissible  to  show  that  notice  had  not  been 
given  as  alleged  in  the  record. 

Party  in  Interest  who  had  Notice  Cannot  Impeach. 

§  246.  Where  a  party  in  interest  has  had  notice  of  the  pro- 
ceedings, it  is  his  duty  to  object  to  any  defect  therein,  and  if  he 
fails  to  do  so,  he  cannot  afterwards  take  advantage  of  such  de- 
fect in  a  collateral  proceeding,  and  particularly  is  this  so  when 
he  has  received  the  benefit  of  the  sale. 

In  Maple  v.  Kussart,34  a  husband  and  wife  were  seized  of  an 
estate  by  entireties,  and  the  husband  made  a  will  disposing  of 
the  entire  estate,  directing  a  sale  thereof,  and  died.  The  entire 
estate  was  sold  by  the  executors  under  the  order  of  the  Orphans' 
Court,  there  being  no  one  named  to  execute  the  power,  thus  ig- 
noring the  estate  by  survivorship  in  the  widow.  The  widow, 
however,  received  her  share  of  the  proceeds  of  the  sale  in  ac- 
cordance with  the  terms  of  the  will  and  encouraged  the  sale. 
In  ejectment  by  her  heirs  after  her  death,  against  the  title  de- 
rived at  the  sale,  a  verdict  for  the  defendants  was  affirmed.  The 
court  put  the  case  on  the  ground  of  estoppel  and  the  receipt  of 
the  purchase  money. 

In  Jacoby  v.  McMahon,  35  there  was  a  sale  by  an  administrator 
for  payment  of  debts  at  private  sale36  which  was  otherwise  reg- 
ular. The  proceeds  of  the  sale  were  applied  to  the  payment  of 
the  debts  and  other  land  relieved  from  the  lien.  It  was  held  that 
the  heirs  could  not  after  eight  years  succeed  in  ejectment  against 
the  purchaser  at  the  sale.  The  court  relied  largely  on  the  cir- 

(34)  53  Pa.  348  (1867). 

(35)  174  Pa.  133  (1896),  s.  c.  189  Pa.  I   (1898). 

(36)  See  the  Act  of  June  12,  1893,  P-  L.  461. 


198  COLLATERAL  ATTACK.  §  247 

cumstance  that  the  son  and  heir  was  in  court  and  did  not  object, 
and  received  the  benefit  of  the  proceeds  of  the  sale. 

In  Phillips  v.  Crist,37  the  executor  who  had  sold  the  land  of 
the  decedent  at  an  Orphans'  Court  sale,  brought  an  action  of 
ejectment  against  the  purchaser  apparently  in  his  own  right.  It 
was  held  that  he  was  estopped  by  his  representations  at  the  sale 
and  his  deed  to  defendant  from  claiming  in  his  own  right  any 
land  within  the  lines  of  the  deed. 

Where   Record   does   not   Show  that   the   Court   had  Jurisdiction,   the 
Decree  May  be  Impeached. 

§  247.  In  the  case  of  an  executor's  or  administrator's  sale  for 
the  payment  of  debts,  the  law  is  clear,  that  if  it  appears  from 
the  facts  in  the  petition  that  the  debts  have  lost  their  lien  or  it 
does  not  clearly  appear  that  there  are  debts  or  that  the  lien  is 
still  subsisting,  the  sale  will  confer  no  title  on  the  purchaser,  and 
the  purchaser  or  those  claiming  under  him  cannot  set  up  the  de- 
cree in  an  action  of  ejectment  against  them  by  the  heirs  or  de- 
visees.88 

In  Halderman  v.  Young,  39  the  Common  Pleas  appointed  a 
committee  of  a  lunatic  under  the  Act  of  April  20,  i869,40  which 
act  did  not  confer  jurisdiction  over  the  property  of  the  lunatic.41 
The  committee  thus  appointed  sold  the  lunatic's  real  estate  under 
order  of  court,  and  it  was  held  in  an  action  of  ejectment  by  the 
former  lunatic  against  the  purchaser  at  the  sale  that  the  decree 
was  valid  and  no  title  conferred.  The  court  said  that  the  case  was 
not  helped  by  the  Act  of  April  28,  i8^6,42  which  only  applies  to 
cases  of  irregularity  in  appointment  or  want  of  proper  qualifica- 

(37)  33  Super.  Ct.  445  (1901)  S. 

(38)  Torrance  v.  Torrance,  53  Pa.  505  (1866)  ;    Smith  v.  Wildman,  178 
Pa.  245  (1896),  s.  c.  194  Pa.  294  (1900)  ;    Smith  v.  Ribblett,  233  Pa.  300 
(1912).    In  Truby  v.  Steele,  45  Super.  Ct.  152  (1911),  the  sale  was  valid 
even  though  the  lien  had  expired,  as  there  were  administration  expenses 
to  be  paid. 

(39)  107  Pa.  324  (1885). 

(40)  P.  L.  78. 

(41)  See  Halderman's  App.,  104  Pa.  251  (1883).    The  appointment  was 
void  and  could  not  be  helped  by  resorting  to  the  general  equity  powers 
of  the  Common  Pleas  over  persons  non   compos  mentis  because  those 
powers  can  only  be  exercised  in  accordance  with  the  statute. 

(42)  P.  L.  50. 


199 

tion  and  not  therefore  to  the  defect  in  the  case  at  bar,  which  was 
a  total  want  of  jurisdiction. 

The  Fact  that  there  is  no  Decree  May  be  Set  tip  in  a  Collateral  Action. 

§  248.  The  circumstance  that  there  is  no  decree  may,  of 
course,  be  set  up  in  a  collateral  action.  Thus,  in  Barger  v. 
Cassidy,  43  an  administrator  presented  a  petition  for  a  mortgage 
to  pay  debts  of  the  intestate.  The  court  made  an  order  for  the 
mortgage  but  no  decree  of  confirmation.  The  administrator  gave 
a  bond  and  warrant  of  attorney  with  the  mortgage,  upon  which 
judgment  was  entered  and  the  land  sold,  and  in  ejectment  by  the 
purchaser  it  was  held  that  his  title  was  void  except  as  to  the  title 
of  the  administrator  in  her  own  right.  The  special  order  to  mort- 
gage did  not  confer  power  to  confess  judgment.44 

In  Kreimendahl  v.  Neuhauser,45  there  was  a  guardian's  sale 
of  a  minor's  undivided  interest  under  Act  of  1853.  The  order 
of  sale  had  been  made  but  no  bond  had  been  filed,  and  the  guard- 
ian had  made  no  return  to  the  order  of  sale,  and  there  was,  there- 
fore, no  confirmation  thereof.  The  minor,  furthermore,  never 
received  any  of  the  proceeds  of  the  sale,  the  guardian  having 
never  accounted  therefor.  The  minor,  on  coming  of  age,  brought 
ejectment  against  the  purchaser  and  recovered.  In  this  case  there 
really  was  no  decree  to  impeach,  the  sale  having  been  carried  out 
bfore  the  Orphans'  Court  proceedings  were  completed. 

In  Morgan's  App.,46  an  administratrix  had  made  a  mortgage  for 
the  payment  of  debts,  an  order  having  been  made  authorizing 
the  mortgage  but  no  return  to  the  order.  Proceedings  were 
begun  upon  the  mortgage,  and  a  bill  in  equity  in  the  Common 
Pleas  was  filed  by  the  administratrix  and  guardian  of  a  minor 
child,  and  it  was  held  that  equity  would  intervene  to  prevent  pro- 
ceedings on  the  mortgage  but  would  not  direct  cancellation  as 
the  mortgagees  could  still  apply  to  the  Orphans'  Court  and  have 
the  mortgages  confirmed  upon  notice  to  all  parties  and  an  ad- 
justment of  all  equities. 

Farol  Evidence. 
§  249.     Parol  evidence  may  be  introduced  to  vary  or  explain 

(43)  4  Phila.  324  (1861),  s.  c.  18  L.  I.  316. 

(44)  See  §  47a,  ante. 

(45)  13  Super.  Ct.  606   (1900). 

(46)  no  Pa.  271  (1885). 


200  COLLATERAL  ATTACK.  §§  250, 251 

the  proceedings  when  there  is  a  latent  ambiguity.  Thus  in  Pringle 
v.  Rogers,47  there  was  an  action  of  ejectment  by  devisee  against 
the  purchaser  at  the  sale,  and  it  was  held  that  parol  evidence  was 
admissible  to  explain  the  description  in  the  deed,  the  distances 
therein  to  be  governed  by  the  monuments  on  the  ground,  and 
the  deed  was  corrected  accordingly,  in  consequence  of  which  a 
small  strip  of  ground  was  found  to  have  been  left  unsold  al- 
though apparently  included  in  the  description  in  the  deed,  for 
which  the  plaintiff  recovered  judgment  according  to  her  interest 
under  the  will.  Where,  however,  the  record  is  plain,  no  evi- 
dence is  admissible. 

In  King  v.  Gas  Coal  Co.,48  there  was  an  action  of  ejectment 
by  devisees  against  defendant  claiming  under  purchaser  at  Or- 
phans' Court  executor's  sale  for  payment  of  debts.  The  contro- 
versy was  over  what  was  conveyed  by  the  executor's  deed,  and 
it  was  held  that  parol  evidence  was  not  admissible  to  explain  the 
description  in  the  deed  because  the  language  used  was  clear  and 
left  no  doubt  as  to  what  property  was  sold  or  conveyed  by  the 
proceedings,  there  being  property  in  existence  to  which  the  de- 
scription accurately  applied. 

In  the  case  of  McGhee  v.  Hoyt,49  the  petition  described  the  land 
correctly,  and  the  deed  incorrectly,  the  property  having  been  sold 
by  an  administrator  for  the  payment  of  debts.  It  was  held  in  an 
action  of  trespass  forty  years  after  the  sale  that  the  description 
in  the  petition  governed  and  the  deed  was  to  be  considered  as 
corrected  accordingly. 

Fraud. 

§  250.  An  Orphans'  Court  sale  may  always  be  impeached  in 
a  collateral  action  for  fraud.50 

Mistake. 
Preliminary. 

§  251.  Mistake  in  an  Orphans'  Court  sale  may  be  of  two 
kinds,  unilateral,  that  is,  where  one  of  the  parties  has  made  a 
mistake  not  participated  in  by  the  other,  and  mutual,  where  both 

(47)  193  Pa.  94  (1899). 

(48)  204  Pa.  628  (1903). 

(49)  106  Pa.  516  (1884),  s.  c.  41  L.  I.  399- 

(50)  Snyder  v.  Snyder,  6  Binney  483  (1814)  ;    Selin  v.  Snyder,  n  S.  & 
R.  319  (1824). 


§§  252,253  MISTAKE.  201 

parties  have  made  the  same  mistake.    The  mistake  may  be  as  to 
the  title  sold,  the  jurisdiction  of  the  court,  etc. 

Unilateral  Mistake. 

§  252.  It  seems  clear,  although  no  authority  for  the  propo- 
sition has  been  found,  that  if  one  of  the  parties,  say  the  pur- 
chaser, participates  in  the  sale  under  some  mistaken  idea  as  to 
the  title  or  the  jurisdiction  of  the  court,  that  he  cannot  be  heard 
to  set  up  that  mistake  in  a  subsequent  collateral  action.  The 
force  and  effect  of  the  decree  must  be  determined  by  the  record, 
irrespective  of  any  mistaken  idea  of  any  of  the  parties  as  to  the 
same.51 

Mutual  Mistake. 

§  253.  Where  both  parties  participate  in  the  same  mistake, 
the  mistake  is  also  unavailing  as  against  a  collateral  attack,  even 
where  the  parties  seeking  to  set  aside  the  decree  of  the  court  par- 
ticipate in  the  mistake.  This  follows  from  the  principle  that 
no  jurisdiction  can  be  conferred  by  consent. 

In  Paul  v.  Squibb,  52  there  was  an  estate  by  entireties,  and  the 
husband  having  died  intestate,  his  administrators  sold  the  prop- 
erty under  the  order  of  the  Orphans'  court  for  the  payment  of 
debts,  and  it  was  held  that  the  title  of  the  widow  as  survivor  was 
not  divested  although  she  knew  of  the  sale,  and  her  heirs  were 
allowed  to  recover  in  ejectment  against  the  defendant  claiming 
under  the  purchaser  at  the  sale.  All  parties  were  ignorant  of 
the  real  state  of  the  title.  As  said  by  the  court  "she  assented  to 
a  sale  of  her  husband's  title,  not  her  own,  of  which  she  was 
ignorant."  She  had  no  share  in  the  receipt  of  the  purchase 
money,  acquiring  no  benefit  from  the  sale. 

The  court  had  no  jurisdiction  to  order  the  title  of  the  widow 
sold  because  it  was  not  liable  for  the  debts.  That  jurisdiction 
would  not  have  been  conferred  had  the  parties  knowingly  con- 
sented to  the  sale.  A  fortiori  there  was  no  jurisdiction  where 
they  unknowingly  consented.  The  widow  was  not  estopped  be- 
cause she  received  no  part  of  the  purchase  money.  This  case  is  to 
be  distinguished  from  Maple  v.  Kussart,53  because  in  that  case 

(51)  The  purchaser  may,  however,  obtain  relief  by  attacking  the  decree 
of  the  court  below.     See  219,  ante. 

(52)  12  Pa.  296  (1849). 

(53)  53  Pa.  348  (1867). 


202  COLLATERAL  ATTACK.  §  254 

although  the  power  which  was  exercised  under  direction  of  the 
court  did  not  extend  to  the  widow's  title,  yet  she  assented  to  the 
sale  and  received  her  share  of  the  proceeds,  and  consequently  was 
in  the  same  position  as  if  she  had  joined  in  the  deed  and  con- 
veyed her  title. 

Statement  of  the  Law  in  Pennsylvania  as  to   Collateral  Attack  Upon 
Orphans'  Court  Sales. 

§  254.  It  seems  from  a  consideration  of  the  cases  we  have 
cited  in  the  foregoing  discussion  that  a  decree  of  the  Orphans' 
•Court  may  be  attacked  in  a  collateral  action  only  in  one  of  two 
cases:  first,  where  the  record  does  not  show  that  the  case  in 
which  the  court  assumed  to  act  was  one  of  the  cases  provided 
for  by  a  statute  conferring  jurisdiction  upon  the  court.  If  the 
jurisdiction  of  the  court  in  any  such  case  depends  upon  the  ex- 
istence or  non-existence  of  certain  facts,  as,  for  instance,  in  the 
case  of  a  sale  for  the  payment  of  debts,  the  fact  that  the  de- 
cedent has  not  been  deceased  for  more  than  two  years,  that  fact 
must  appear  on  the  record,  otherwise  the  court  has  no  jurisdic- 
tion. The  other  case  is  that  where  a  party  in  interest  who  is 
entitled  to  notice  has  not  received  notice  of  the  proceedings  in 
the  Orphans'  Court.  It  is  perfectly  clear  that  a  man's  title  may 
not  be  divested  by  judicial  proceedings  of  which  he  has  had  no 
notice.  Such  a  person  may  proceed  afterwards  to  assert  his  title 
and  the  decree  of  the  court  authorizing  the  sale  cannot  be  set  up 
against  him.  The  difficulty  here  is  that  since  the  Orphans'  Court 
decree  is  conclusive  of  all  facts  set  out  in  the  record,  a  case  may 
arise  where  the  record  will  show  a  notice  to  an  individual  which 
notice  was  not  in  fact  given,  that  is,  the  record  will  contain  a 
false  averment.  Now  the  principle  here  is  that  the  falsity  of 
that  averment  cannot  be  shown,  and  in  such  a  case  the  person 
who  failed  to  receive  the  notice  upon  bringing  an  action  to  assert 
his  title  would  be  met  with  the  decree  of  the  court  showing  the 
notice,  and  his  case  would  fail.  There  is  an  apparent  injustice 
here  which,  however,  disappears  when  we  reflect  that  an  Orphans' 
Court  sale  can  always  be  set  aside  in  a  collateral  action  because 
of  fraud.  The  case  of  a  false  averment  as  to  notice  will  nearly 
always  be  a  case  of  fraud,  and  the  person  whose  title  has  been 
divested  may  obtain  relief  under  this  principle. 


§§  257,258  DISCHARGE  oj?   LIENS.  203 


CHAPTER  17. 

Discharge  of  Liens  by  Sale  Under  the  Act. 

General  rule  as  to  judicial  sales   §  257 

Distinction  between  Orphans'  Court  sales  and  sheriff's  sales  §  258 

Effect  of  public  sale  under  the  act   §  259 

Effect  of  private   sale  under  the  act   §  260 

Liens 

Mortgages     §  261 

Judgments     §  262 

Legacies  §  263 

Collateral  inheritance  tax    §  264 

Dower    §  265 

Taxes   §  266 

Debts  of  decedent  §  267 

Arrears  of  interest  on  the  lien     §  268 

Ground  Rents   §  269 

Agreement  of  parties  as  to  disharge  of  liens   §  270 

Preliminary. 
General  Rule  as  to  Judicial  Sales. 

§  257.  The  sale  under  the  provision  of  the  act  is  a  judicial 
sale  and  subject  to  the  general  rule  applicable  in  such  cases, 
which  is  that  a  judicial  sale  discharges  all  liens  except  (i)  where 
liens  are  created  by  last  will  and  testament  as  permanent  pro- 
visions for  wives  and  children,  (2)  where  from  the  nature  of 
the  incumbrance  it  will  not  readily  admit  of  valuation,  and  (3) 
where  it  is  plain  from  the  agreement  of  the  parties  that  the  en- 
cumbrance was  intended  to  run  with  the  land,1  (4)  where  liens 
are  specially  saved  by  statute.  The  provisions  of  the  act,  there- 
fore, that  by  a  public  sale  the  premises  shall  be  discharged  of 
all  liens,  is  merely  declaratory  of  the  existing  law.2 

Distinction  Between  Sale  Under  the  Act  and  Sale  by  the  Sherff. 

§  258.  There  is  this  distinction  to  be  noted  between  a  sale 
under  the  act  and  a  sale  by  the  sheriff  under  execution  issuing 
out  of  the  Common  Pleas.  In  the  latter  case,  the  sale  is  always 
on  some  lien  or  encumbrance  against  the  land,  and  there  are 

(1)  Levengood's  Est,  38  Super.  Ct.  491  (1909). 

(2)  See  Henry  Wharton,  6  W.  N.  C.  at  549. 


204  DISCHARGE  OF  LIENS.  §§  259, 260 

several  questions  involved :  ( i )  as  to  the  discharge  of  liens  sub- 
sequent to  the  one  under  which  the  sale  is  made,  (2)  as  to  the 
discharge  of  liens  prior  to  the  one  on  which  the  sale  is  made. 
A  sale  under  the  Price  Act,  however,  is  always  ordered  inde- 
pendently of  and  not  under  a  lien,  and  the  question,  therefore, 
is  which  of  the  liens  against  the  property  at  the  time  of  the  sale 
are  discharged  thereby.  It  must  be  remembered  that  the  proceeds 
take  the  place  of  the  land,  and  that  the  selling  price  of  the  prop- 
erty as  a  whole  is  considered  as  diminished  to  the  extent  of  the 
encumbrances  that  remain  and  are  not  discharged.  It  is  com- 
paratively easy,  therefore,  to  make  a  settlement  in  every  case 
where  a  purchaser  buys  in  ignorance  of  the  existing  encum- 
brances which  remain,  and  where  the  application  is  made  in  time, 
the  court  will  by  proper  decree  protect  the  purchaser.3 

Effect  of  Public  Sale  Under  the  Act. 

§  259.  The  act  provides  that  by  every  such  public  sale  the 
premises  sold  shalLbs^ischaig.ed.^of  alHiens.  The  open  ques- 
tion is  whether  this  language  is  to  be  literally  applied  or  whether 
the  effect  of  a  public  sale  under  the  act  is  to  be  limited  by  the 
general  rules  relating  to  the  effect  of  judicial  sales  in  general  and 
Orphans'  Court  sales  in  particular,  and  by  the  several  statutes 
which  may  relate  to  any  particular  lien,  which  may  have  been 
adopted  subsequent  to  the  passing  of  the  Price  Act. 

Effect  of  Private  Sale  Under  the  Act. 

§  260.  The  act  contains  no  provision  as  to  the  effect  of  a 
private  sale  in  discharging  liens  other  than  the  clause  that  the 
sale  shall  discharge  the  lien  of  debts  of  a  decedent  except  debts 
of  a  decedent  of  record  and  debts  secured  by  mortgage.*  It  is 
clear  that  the  court  can  not  make  a  private  sale  have  any  greater 

(3)  Where  the  liens  are  not  discharged  by  the  sale  the  purchaser  will 
be  protected  by  requiring  them  to  be  deducted  out  of  the  purchase  money, 
Moorehead  v.  Wolff,  123  Pa.  365  (1889),  s.  c.  23  W.  N.  C.  167,  36  Pitts. 
L.  J.  352,  46  L.  I.  261.    Dictum  Penn  Sq.  Bldg.  Assn.  App.,  81^2  Pa.  330 
(1876),  per  curiam  at  332. 

(4)  See  Act  of  March  23,  1867,  P.  L.  43,  which  provides  as  follows : 
"Section  2.     That  private  sales,  made  by  order  of  court,  under  the  said 
Act  of  the  eighteenth  of  April,  one  thousand  eight  hundred  and  fifty-three, 
shall  discharge  the  premises  sold  from  the  lien  of  the  debts  of  the  de- 
cedent, except  debts  of  record,  and  debts  secured  by  mortgage :    Provided, 
That  the  security,  required  by  said  act,  shall  have  been  duly  entered. 


§  26 1  MORTGAGES.  205 

effect  than  a  public  sale,  and  therefore  the  only  question  as  to 
a  private  sale  is,  whether  it  will  have  as  great  an  effect  as  a 
public  sale  in  discharging  liens.  No  case  on  this  point  has  been 
found. 

Every  private  sale  is  perhaps  without  exception  reduced  to  a 
written  agreement  between  the  parties,  which  is  usually  expressed 
as  being  subject  to  the  approval  of  the  court  in  cases  where  it 
is  necessary  to  have  the  sale  confirmed.  The  effect  of  the  sale, 
therefore,  as  to  liens  and  encumbrances  depends  on  the  terms 
of  the  agreement  and  the  nature  of  the  liens  and  encumbrances, 
just  as  in  the  case  of  any  other  sale  of  real  estate.5  Our  dis- 
cussion of  the  cases,  therefore,  will  be  principally  confined  to 
those  of  a  public  sale.  It  is  convenient  to  arrange  the  discussion 
under  the  readings  corresponding  to  the  various  liens  which  may 
arise. 

Mortgages. 

§  261.  If  the  mortgage  is  a  debt  of  record  of  the  decedent, 
it  is  not  discharged  by  a  private  sale,6  and  this  seems  to  apply 
whether  the  mortgage  is  a  first  or  other  lien.  If  the  sale  is  public, 
it  is  discharged  by  the  provisions  of  the  Price  Act  uriless  saved 

(5)  This  is  illustrated  by  the  decision  in  Kayser's  Est.,  9  D.  R.  360 
(1900),  where  there  was  an  agreement  of  sale  by  trustees  made  on  May 
21,  1897,  subject  to  the  approval  of  the  Orphans'  Court.     On  May  nth, 
ten  days  before  the  date  of  the  agreement,  the  city  had  let  a  contract  for 
building  a  sewer  in  the  street  in  front  of  the  premises.     The  work  on 
this  sewer  was  begun  on  May  27,  the  order  of  sale  was  granted  on  June 
15,  the  work  was  completed  on  June  14,  and  on  June  23  the  deed  was 
executed  and  tendered.    The  agreement  called  for  a  title  clear  of  all  en- 
cumbrances, and  both  parties  were  ignorant  of  the  sewer  lien.     It  was 
held  that  the  lien  began  under  the  statute  on  June  14,  1897,  at  which  time 
the  vendee  was  in  equity  the  owner,  his  title  having  been  properly  ac- 
quired under  the  agreement  of  sale,  and  that  therefore  the  property  was 
free  of  encumbrances  when  he  acquired  title,  and  the  cost  of  the  sewer 
was  to  be  paid  by  the  vendee.    This  is  a  decision  similar  to  one  which  will 
be  reached  whether  the  sale  was  subject  to  the  approval  of  the  Orphans' 
Court  or  not. 

(6)  Moorehead  v.  Wolf,   123  Pa.  365    (1889)    s.  c.  23  W.   N.  C.   167, 
36  Pitts.  L.  J.  352,  46  L.  I.  261.    This  was  a  case  of  a  private  sale  under  the 
Price  Act.     Of  course,  if  the  mortgage  was  not  due,  the  parties  had  to 
make  the  agreement  of  sale  subject  to  it,  and  if  it  was  due,  it  could  ef- 
fectually be  discharged  by  paying  it  off  at  the   settlement.     See   Penn 
Sq.  Bldg.  Assn.  App.,  8ij4  Pa.  330  (1876). 


206  DISCHARGE  OF  I^IENS.  §  261 

by  the  Act  of  May  8,  1901, 7  which  may  probably  be  considered 
as  amending  the  Price  Act.  When  the  mortgage  is  due  and  pay- 
able it  may  in  effect  be  discharged  by  agreement  of  the  parties 
to  pay  it  out  of  the  proceeds  at  the  settlement. 

In  Jerman  v.  Lyon,8  the  property  was  sold  in  1863  at  public 
sale  under  the  Price  Act  upon  a  petition  by  all  the  heirs  of  the 
deceased  intestate,  praying  for  leave  to  sell  clear  of  all  liens, 

(7)  P.  L.  141,  amending  the  Act  of  May  19,  1893,  P-  L.  no,  which 
amended  the  Act  of  March  22,  1887,  P.  L.  6,  and  Act  of  March  23,  1867, 
P.  L.  43,  Sec.  3,  saves  the  lien  of  a  mortgage  from  discharge  when  it  is 
prior  to  all  other  liens  except 

Other  mortgages 

Ground  rent 

Purchase  money  due  Commonwealth 

Not   duly   entered  in   court   as   a 


Municipal  claims  r     .. 

.  I     lien  at  the  date  of  the  mortgage 

Assessments  ) 

Taxes  ~\ 

,,..,,.  /     Whose  lien  though  afterwards  ac- 

Mumcipal  claims  y          s       «.      v_  •  •     • 

(      crumg  has  by  law  priority  to  it 
Assessments  ) 

by  any  judicial  or  other  sale  whatsoever,  whether  made  by 

decree  of  the  Orphans'  Court 

decree  of  any  other  court 

any  writ  of  execution 

or  otherwise  howsoever, 

with  a  proviso  that  the  act  shall  not  apply  to  mortgages  on  unseated  lands 
or  sales  of  the  same  for  taxes. 

"For  the  effect  of  the  last  Act  (March  23,  1867,  P.  L.  43),  being  to  pre- 
serve the  lien  of  the  mortgage,  upon  any  such  sale,  is  that  the  bond 
cannot  be  treated  as  a  general  debt  on  the  distribution  of  the  fund  pro- 
duced by  the  sale;  indeed,  standing  alone  it  would  not  even  authorize  an 
application  for  a  sale  of  the  mortgaged  property  in  the  Orphans'  Court. 
This  is  settled,  and  as  the  purchaser  buys  the  land  for  just  so  much  less, 
by  reason  of  the  mortgage,  if  this  were  all,  the  correctness  of  the  de- 
cisions could  not  be  questioned.  Where,  for  instance,  as  is  not  infrequent, 
especially  in  the  country,  a  man  is  the  owner  of  a  good  deal  of  mortgaged 
land,  but  with  a  personal  estate  less  than  the  mortgages,  distribution  is 
impossible  till  the  mortgage  has  been  sued  out.  In  consequence  of  this 
the  Act  of  1867  has  been  repealed  form  time  to  time  as  to  all  the  counties 
of  this  State,  except  Philadelphia  and  one  other,  where  its  consequences 
are  not  so  injurious,  and  the  interests  of  large  investors  are  united  in  its 
favor;  though  even  here  it  sometimes  produces  a  deadlock.  Henry  Whar- 
ton,  "Lien  of  decedent's  debts  in  Pennsylvania,"  6  W.  N.  C.  545  at  548- 
549  (1879). 

(8)  81   Pa.   107   (1876). 


§§  262, 263  JUDGMENTS.     LEGACIES.  207 

and  the  sale  was  so  made,  but  the  purchaser  took  the  conveyance 
subject  to  a  mortgage  which  had  been  executed  by  the  intestate, 
and  the  amount  of  which  mortgage  was  deducted  from  the  pur- 
chase money.  The  mortgage  was  sued  out,  and  in  an  action  of 
ejectment  by  the  plaintiff,  who  was  the  purchaser  at  the  Orphans' 
Court  sale  against  the  defendant  who  claimed  under  the  sheriff's 
sale,  judgment  was  entered  for  the  defendant,  the  court  saying 
that  the  sale  under  the  Act  of  1853  would  have  discharged  the 
lien  but  the  arrangement  of  the  parties  and  manner  of  settlement 
prevented  it. 

Judgments. 

§  262.  Where  a  judgment  is  against  the  decedent,  it  is  a  debt 
of  record  and  consequently  not  discharged  by  a  private  sale  under 
the  act.  Where  the  sale  is  public,  the  lien  thereof  is  probably 
discharged.  No  decision  on  this  point  has  been  found.  Since  a 
judgment  is  always  due  and  payable,  the  parties  may,  in  case  of 
a  private  sale,  provide  for  the  case  by  a  covenant  by  the  vendor 
to  convey  clear  of  encumbrance.9 

Legacies. 

§  263.  A  legacy  is  discharged  by  a  sale  or  mortgage  under 
the  Price  Act.10  In  Randolph's  Appeal,11  there  was  an  admin- 
istrator's sale  for  the  payment  of  debts  and  the  maintenance  of 
children.  The  sale  was  confirmed  at  a  certain  price.  The  ad- 

(9)  See  §  260,  ante.     Public  sale  under  the  Act  of  March  29,   1832, 
P.  L.  190,  discharges  the  lien  of  judgments  against  the  decedent.    Dictum 
in  O'Brian  v.  Wiggins,  14  Super.  Ct.  37  (1900),  s.  c.  17  Lane.  L.  R.  233, 
14  York  54,  affirming  8  D.  R.  418,  22  Pa.  C.  C.  236,  16  Lane.  L.  R.  143. 
Where  there  are  life  estates  and  remainders  under  a  will  and  a  sale  by 
executors  under  the  will,  the  question  as  to  whether  judgments  against 
the  life  tenants  are  discharge  by  the  sale  was  not  decided  in  Moorehead 
v.  Wolff,  123  Pa.  365  (1889),  23  W.  N.  C.  167,  36  Pitts.  L.  J.  352,  46  L.  I. 
261.    Judgments  against  a  co-tenant  are  discharged  by  the  sale  in  partition 
proceedings  in  the  Orphans'  Court,  Mehrten's  Est,  41  Pa.  C.  C.  169  (1913). 
In  Smith's  Est.,  8  Lack.  L.  N.  308  (1902),  there  was  a  mortgage  by  an 
executor  to  pay  debts  under  order  of  the  court.    A  controversy  arose  over 
distribution  of  the  proceeds  of  the  mortgage,  and  it  was  held   that  a 
judgment  omitted  from  the  list  of  debts  in  the  petition  was  not  thereby 
deprived  of  its  claim  to  payment  out  of  the  fund  according  to  priority. 

(10)  Lombaert's  App.,  99  Pa.  580  (1882). 

(11)  5  Pa.  242  (1847). 


208  DISCHARGE  OF  LIENS.  §  264 

ministrator  varied  the  terms  of  the  sale  and  agreed  that  certain 
legacies  should  remain  charged  on  the  land.  It  was  held,  never- 
theless, that  the  lien  of  the  legacies  was  discharged  by  the  sale 
notwithstanding  the  arrangement.  The  case  arose  on  an  attempt 
by  a  legatee  to  enforce  his  claim  against  a  fund  raised  by  a  sub- 
sequent sheriff's  sale  of  the  property.12 

Collateral  Inheritance  Tax. 

§  264.  The  lien  of  the  collateral  inheritance  tax  is  probably 
discharged  by  an  Orphans'  Court  sale,  although  there  does  not 
seem  to  be  any  very  clear  decision  to  this  effect.  In  Penn  Gas- 
kill's  Est.  (No.  i),13  there  was  a  case  where  real  estate  had  been 
sold  under  the  Price  Act,  and  the  question  was  as  to  the  com- 
mission to  be  charged  by  the  trustees  and  the  payment  of  the  col- 
lateral inheritance  tax.  The  question  arose  on  audit  of  the  ac- 
count of  the  proceeds  of  the  sale,  and  the  court  held  that  the 
trustee  was  bound  to  pay  the  tax  to  discharge  'the  lien,  but  that 
the  amount  so  paid  should  be  properly  apportioned  between  prin- 
cipal and  income.  This  case  seems  to  decide  that  the  sale  dis- 
charges the  tax ;  because  if  it  was  not  discharged,  the  trustee 
would  not  be  authorized  in  paying  it.14 

(12)  See  also  Herr  v.  Groff,  34  Pa.  C.  C.  65  (1907),  where  it  was  held 
that  a  charge  by  will  was  divested  by  sheriff's  sale. 

(13)  208  Pa.  342  (1904). 

(14)  See  also  remarks  of  Walling,  P.  J.,  in  Culbertson's  Est.,  38  Pa. 
C.  C.  491   (1911)  at  493,  s.  c.  20  D.  R.  1081   (1911),  as  follows:    "In  our 
opinion,  the  Commonwealth  is  entitled  to  the  relief  sought.    The  admin- 
istrator is  liable  because  he  undertook  to  collect  such  collateral  inheritance 
tax  by  sale  of  the  land  and  he  voluntarily  paid  the  money  over  to  the 
heirs  without  deducting  the  five  per  cent,  due  the  state.     The  tax  being 
against  real  estate,  he  would  not  be  liable  except  that  he  undertook  to 
collect  it.     Boyd's  Est.,  4  W.  N.  C.  510.    The  land  having  been  sold  at 
private  sale,  without  any  published  notice,  or  other  notice  to  the  register 
of  wills,  or  to  the  Commonwealth,  such  sale  did  not  divest  the  statutory 
lien  of  the  collateral   inheritance  tax.     The   statute   provides   that    such 
tax  shall  remain  a  lien  until  paid.  It  might  perhaps  be  divested  by  a  judicial 
sale  after  proper  notice.    And  a  private  sale  of  land  for  payment  of  debts 
pursuant  to  the  Act  of  May  9,  1889,  P.  L.  182,  to  have  the  effect  of  a 
public  sale  under  the  Act  of  1832,  P.  L.  190,  must  be  advertised  as  said 
last-named  act  requires  a  public  sale  to  be  advertised.     O'Brien  v.  Wig- 
gins, 14  Super.  Ct.  37." 


§§  265,266,267  DOWER.   TAXES.  209 

Dower. 

§  265.  A  dower  charge  is  not  discharged  by  Orphans'  Court 
sale  of  the  property  out  of  which  it  issues.15 

Taxes. 

§  266.  Municipal  taxes  assessed  prior  to  the  date  of  the  sale, 
although  for  the  year  in  which  the  sale  was  made,  are  not  dis- 
charged by  a  private  sale  by  a  trustee  confirmed  under  the  act.16 
The  Act  of  May  22,  i895,17  provides  that  the  lien  of  all  taxes 
then  or  thereafter  levied,  etc.,  shall  be  divested  by  any  judicial 
sale  when  the  amount  of  the  purchase  money  shall  equal  the 
amount  of  the  taxes.  Where  the  lien  of  taxes  has  expired  by 
limitation,  the  purchaser  at  Orphans'  Court  sale  acquires  title 
free  of  the  tax.18 

Debts  of  a  Decedent. 

§  267.  The  lien  of  debts  of  record  of  a  decedent  is  discussed 
under  the  heading  of  the  various  recorded  liens  which  may  rep- 
resent the  debt.  If  debts  of  the  decedent  are  not  of  record,  they 
are  discharged  by  a  public  or  private  sale.19  If  the  debts  of  the 
decedent  are  of  record,  they  are  expressly  saved  from  discharge 
by  a  private  sale.20 

(15)  Dech  v.  Gluck,  47  Pa.  403   (1864);    Dull  v.  Slater,  31  Super.  Ct. 
488  (1906). 

(16)  In  Steen's  Est.,  175  Pa.  299  (1896),  aff.  17  Pa.  C.  C.  201,  it  was 
held  that  the  city  was  not  entitled  to  recover  the  amount  of  the  tax  out 
of  the  proceeds  of  the  sale.     This  case  proceeds  upon  the  ground  that 
the  tax  was  a  debt  of  record  under  the  existing  law  and  therefore  saved 
by  the  Act  of  March  23,  1867,  P.  L.  43,  which  provides  that  a  private  sale 
under  the  Price  Act  shall  discharge  the  lien  of  all  debts  of  the  decedent 
except  debts  of  record,  mortgages,  etc.     This  leaves  open  the  question 
as  to  taxes  assessed  against  the  premises  after  the  date  of  the  death.    As 
the  case  arose  before  the  Act  of  1895,  the  court  said  that  act  did  not 
apply.    In  McClurg's  Est.,  4  D.  R.  655  (1895),  the  sale  had  been  ordered 
divested  of  all  liens  and  a  claim  of  the  City  of  Pittsburgh  for  the  amount 
of  a  municipal  lien  for  grading  and  paving  was  disallowed  on  audit  of 
the  trustees  account  of  the  fund,  because  the  lien  was  not  properly  filed 
and  therefore  invalid. 

(17)  P.  L.  in. 

(18)  Phila.  v.  Reeder,  30  Pa.  C.  C.  375  (1904). 

(19)  For  a  discussion  of  which,  see  §  113^  ante. 

(20)  See  §  125,  ante. 


210  DISCHARGE  OF  LIENS.  §  268 

Arrears  of  Interest. 

§  268.  Arrears  of  interest  on  any  lien  are  also  saved  from 
discharge  as  they  are  part  of  the  debt.  Where  there  is  an  ad- 
ministrator's sale  for  the  payment  of  debts,  interest  on  the  lien 
runs  to  the  delivery  of  the  deed  and  payment  of  the  money.21 
There  appears  to  be  a  distinction  as  to  the  payment  of  arrears 
of  interest  between  the  case  where  the  estate  is  insolvent  and 
where  it  is  solvent,  as  to  the  time  to  which  the  arrearages  of 
interest  are  to  be  computed.  In  Yeatman's  App.,22  there  was  an 
executor's  sale  for  the  payment  of  debts,  the  personal  estate 
being  insufficient,  and  on  distribution  of  the  proceeds,  a  holder 
of  a  mortgage  executed  by  the  decedent  was  allowed  interest  on 
the  bond  after  the  confirmation  of  the  sale  and  until  date  of  pay- 
ment, the  estate  being  solvent  and  the  bond  being  that  of  the  dece- 
dent. 

In  the  case  of  Ramsey's  App.,23  there  was  an  administrator's 
sale  for  payment  of  debts  under  order  of  court  and  an  auditor 
appointed  to  distribute  the  fund  raised  by  the  sale.  Lien  credi- 
tors were  awarded  interest  to  the  return  day  of  the  order  of 
the  sale  and  not  to  the  day  of  payment.  This  was  evidently  a 
case  of  insolvency,24  and  the  court  went  on  the  ground  that  in- 
terest ceases  in  the  case  of  sheriff's  sale  from  the  time  of  the 
return  and  the  confirmation  of  the  sale.  Mercur,  J.,  in  Carver's 
App.,25  seems  to  think  the  court  in  Ramsey's  App.,26  were  under 
the  impression  that  the  money  was  paid  on  the  return  day,  it 
appearing  that  the  sale  was  confirmed  on  that  day. 

In  Campbell's  Est.,27  there  was  a  distribution  of  the  proceeds 
of  sale  of  a  decedent's  real  estate  for  the  payment  of  debts. 
It  appeared  that  the  bond  bore  interest  between  the  confirmation 
of  the  sale  and  the  filing  of  the  administrator's  account.  The 
auditor  distributed  the  principal  to  the  judgment  creditors  in  the 
order  of  their  liens  and  the  interest  pro  rata  among  the  same 
creditors.  The  report  was  confirmed,  the  court  saying  it  was 

(21)  Ross's   Est,   18  D.  R.  429   (1908).     Case  arose  on  exception  to 
adjudication.    Report  obscure. 

(22)  102  Pa.  297  (1883). 

(23)  4  Watts  71  (1835). 

(24)  Rowe's  Est.,  ii  Kulp  32  (1904),  accord. 

(25)  89  Pa.  276  (1879)  at  277. 

(26)  4  Watts  71   (1835). 

(27)  (No.  i)  22  Super.  C.  430  (1903). 


§§  269,270  GROUND  RENTS.  211 

an  error  to  distribute  the  interest  first  to  the  satisfaction  of  a 
judgment  not  fully  paid  from  the  principal  and  the  residue  to  a 
later  judgment  not  reached.  The  estate  was  apparently  insolvent. 
Decree  is  open  to  criticism.28 

Ground  Rents. 

§  269.  It  seems  that  a  ground  rent  may  not  be  discharged  by 
an  Orphans'  Court  sale.  The  ground  rent  is  an  estate  in  the 
land,  and  whether  redeemable  or  irredeemable  remains  until  re- 
leased by  conveyance  from  the  owner  of  the  land.  The  arrear- 
ages of  ground  rent  are  probably  subject  to  the  same  rule  as  in- 
terest on  mortgages  and  other  encumbrances,  and  may  be  dis- 
charged by  a  sale  when  the  ground  rent  itself  would  not  be. 

In  Bickley's  Adm.  v.  Biddle,29  there  was  a  bill  in  equity  in 
the  Common  Pleas  by  an  administrator  against  a  purchaser  at 
Orphans'  Court  sale  for  specific  performance,  the  sale  not  hav- 
ing been  confirmed.  The  bill  was  dismissed,  the  court  saying  the 
jurisdiction  was  exclusively  in  the  Orphans'  Court.  The  pur- 
chaser objected  to  a  ground  rent  and  building  restrictions,  the 
sale  having  been  made  clear  of  all  encumbrances.  The  court  said, 
by  way  of  dictum,  that  he  could  not  defend  under  the  rule  of 
caveat  emptor.30  The  dictum  is  open  to  objection. 

Parties  May  in  Certain  Cases  by  Agreement  Alter  the  Effect  of  the  Sale 
as  to  Discharge  of  Liens. 

§  270.  The  parties  may  by  agreement  make  the  sale  subject 
to  any  lien  or  encumbrance  which  would  otherwise  be  discharged 
or  provide  for  the  extinguishment  of  an  encumbrance  or  lien 
which  would  not  be  discharged  if  the  owner  thereof  consents. 

It  is  not  lawful  to  sell  as  if  there  were  no  encumbrances,  but 
the  sale  being  made  for  the  full  value,  it  obviously  makes  no 
difference  whether  the  encumbrances  are  allowed  to  remain  and 
settlement  made  for  the  equity,  or  whether  the  whole  purchase 
money  is  collected  and  the  encumbrance  paid  off  out  of  it. 

Thus,  in  Crosson's  App.,31  the  administrator  settled  with  the 

(28)  As  to  interest  in  case  of  assignee's  sale,  see  Brownsville  Bank's 
App.,  96  Pa.  347  (1880);    Tomlinson's  App.,  90  Pa.  224  (1879). 

(29)  33  Pa.  376  (1859)- 

(30)  Howe's  Est.,  14  Pa.  C.  C.  574  (1894),  s.  c.  3  D.  R.  267. 

(31)  125  Pa.  380  (1889),  affirming  6  Pa.  C.  C.  14  (1888).     See  expla- 
nation of  the  misleading  syllabus  by  Mitchell,  J.,  in  Kreamer  v.  Fleming, 
191  Pa.  534  (1899)  at  538. 


212  DISCHARGE;  OF  LIENS.  §  270 

purchaser  deducting  the  liens,  mortgages  and  ground  rents.  It 
was  held,  all  parties  having  acquiesced,  that  the  administrator 
would  not  be  surcharged  on  the  filing  of  the  account  with  the 
amount  of  the  encumbrances,  although  the  court  said  the  sale 
might  well  have  been  set  aside.  This  illustrates  the  propo- 
sition that  the  decree  as  to  price  is  conclusive,  and  where  it  ap- 
pears that  at  the  settlement  the  equity  in  the  property  was  set- 
tled for,  it  is  sufficient. 

In  the  case  of  a  mortgage  for  payment  of  debts  under  Act 
of  March  29,  i832,32  the  lien  of  prior  mortgages  may  be  dis- 
charged with  the  consent  of  the  holders  thereof.33  Liens  dis- 
charged by  judicial  sale  may  be  saved  where  the  sale  is  made  on 
the  express  condition  that  the  lien  shall  be  a  continuing  charge.34 

(32)  P.  L.  190. 

(33)  Laughlin's  Est.,  23  W.  N.  C.  544  (1889). 

(34)  Nowry's  Est.,  20  Pa.  C.  C.  76  (1897),  sheriff's  sale. 


§  271  APPEALS.  213 


CHAPTER  XVIII. 

Appeals. 

§  271.  The  act  provides1  that  appeals  may  be  taken  in  all 
proceedings  under  the  act  to  the  Supreme  Court.2 

Notice  of  the  appeal  must  be  given  to  the  vendee,  mortgagee 
or  lesee,  otherwise  reversal  of  the  decree  will  not  affect  his  title, 
and  twenty  days  shall  be  allowed  in  which  to  perfect  the  appeal. 
This  provision  obviously  allows  an  appeal  by  the  person  carry- 
ing out  the  decree  of  the  court  or  by  any  other  person  interested 
including  the  vendee,  mortgagee  or  lessee.  The  effect  of  the 
provision  as  to  the  latter  is  that  their  title  is  not  affected  if  the 
decree  be  reversed  on  an  appeal  by  any  other  party  after  twenty 
days  shall  have  elapsed  from  the  entry  of  the  decree  and  no  writ- 
ten notice  thereof  be  given.  An  appeal,  therefore,  in  such  case 
must  be  taken  within  twenty  days  of  the  date  of  the  decree,  or 
if  after  twenty  days  before  the  decree  shall  be  carried  into  ef- 
fect, and  in  either  case  written  notice  must  be  given  to  the 
vendee,  mortgagee  or  lessee,  otherwise  a  reversal  of  the  decree 
will  have  no  effect  on  the  title  passing  thereunder.  It  is  always 
safer,  therefore,  when  there  is  any  doubt  to  wait  twenty  days 
after  the  decree  before  completing  the  sale,  mortgage,  lease  or 
conveyance  on  ground  rent. 

(1)  "Sec.  8.     That  in  all  cases  and  proceedings  under  this  act,  appeals 
may  be  taken  to  the  Supreme  Court  from  the  Orphans'  Couprt,  as  now 
provided  by  law  in  other  cases,  and  in  the  Court  of  Common  Pleas,  as 
provided  in  equity  cases,  in  the  respective  counties  of  the  State.     Pro- 
vided, That  if  any  decree  be  carried  into  execution  before  the  appeal  be 
perfected,  and  written  notice  thereof  given  to  any  vendee,  mortgagee,  or 
lessee,  any   reversal  thereof  shall  not  affect  the   right  or  title  of   such 
vendee,  mortgagee  or  lessee,  but  the  purchase  or  mortgage  money  or  rents 
shall  stand  in  lieu  of  the  premises  sold  or  mortgaged,  or  leased,  so  far 
as  thus  encumbered:    Provided  further,  That  before  any  decree  be  car- 
ried into  effect  to  afford  such  indemnity,  twenty  days  be  allowed  from 
its  entry  to  take  and  perfect  such  appeal." 

(2)  This  provision  is,  of  course,  qualified  by  the  legislation  establish- 
ing   the    Superior    Court    and    designating    the    cases    in    which    appeals 
shall  be  taken  to  that  tribunal.    Act  of  June  24,  1895,  P.  L.  212,  amended 
by  the  Act  of  May  5,  1899,  P.  L.  248,  confer  Act  May  19,  1897,  P.  L-  67, 
as  to  practice  in  the  matter  of  bail,  costs  and  fees  on  appeal. 


214  APPEALS.  §  271 

For  convenience  of  reference,  a  few  cases  have  been  collected 
in  the  note  illustrating  the  various  orders  and  decrees  in  the  Or- 
phans' Court  which  are  not  appealable.3 

(3)  Order  directing  sale  not  appealable,  Grim's  App.,  33  Sup.  Ct.  587 
(•1907)  ;  Bucknor's  App.,  4  Walk.  331  (1884)  ;  Snodgrass's  App.,  96  Pa. 
420  (1880),  overruling  Hess's  App.,  I  Watts  255  (1832).  Consequently, 
where  property  is  sold  pending  the  appeal  from  the  order  of  sale,  the 
purchaser  will  take  a  good  title  and  may  recover  in  ejectment,  Robinson  v. 
Clancy,  69  Pa.  89  (1871).  Order  directing  an  executor  to  make  return  to 
the  court  of  an  order  of  sale  of  real  estate  for  the  payment  of  debts, 
granted  upon  his  application  and  upon  decree  confirming  the  sale  to  exe- 
cute and  deliver  to  the  purchaser  a  proper  deed  of  the  premises  interlocu- 
tory not  appealable  by  the  executor,  and  his  appeal  was  quashed  on  mo- 
tion by  the  purchaser,  Walker's  Est.,  25  Super.  Ct.  256  (1904).  Probably  a 
distinction  is  to  be  drawn  where  the  order  directs  an  executor  to  exercise 
a  power  under  the  will,  as  to  making  a  sale.  In  such  case  an  appeal  was  en- 
tertained in  Douty's  Est.,  196  Pa.  432  (1900).  In  Badder's  Est.,  5  Super. 
Ct.  465  (1897),  there  was  a  petition  to  open  decree  of  distribution  of  bal- 
ance arising  from  Orphans'  Court  sale  of  real  estate  by  an  executor.  A 
certain  sum  of  money  had  been  awarded  to  a  mortgage  creditor  who  had 
given  notice  at  the  sale  that  the  lien  of  the  mortgage  would  be  divested ; 
petition  presented  by  guardian  of  minor  children  of  the  decedent  com- 
plaining of  this  award  to  the  mortgage  creditor,  and  setting  out  that  they 
had  no  notice  of  the  sale.  The  court  granted  the  petition  and  directed 
payment  of  the  amount  due  the  mortgage  creditor  to  a  guardian  of  the 
children.  The  case  was  reversed  on  appeal  by  the  administrator.  An  ad- 
ministrator may  appeal  from  a  decree  upon  an  account  which  is  final  as  to 
him.  Certain  other  matters  are  in  the  sound  discretion  of  the  court 
below,  which  is  not  to  be  interfered  with  except  where  there  is  an  abuse 
of  the  discretion.  The  refusal  of  the  district  court  to  direct  an  executor 
to  apply  to  the  court  for  another  order  of  sale,  his  return  to  the  first  being 
that  the  property  could  not  be  sold  for  a  sufficient  bid  in  consequence  of  an 
easement,  Gamble  v.  Woods,  53  Pa.  158  (1866).  Order  opening  decree 
of  confirmation  and  setting  aside  sale,  Williams's  Est.,  140  Pa.  187  (1891). 
Decree  refusing  to  set  aside  sale  of  real  estate  on  ground  of  inadequacy 
of  price,  Bowers's  App.,  84  Pa.  311  (1877).  Bill  of  review  by  an  heir  ask- 
ing that  the  decree  directing  administrator's  sale  for  payment  of  debts  be 
rescinded  and  action  of  the  court  on  the  petition  setting  the  sale  aside, 
Haslage's  App.,  37  Pa.  440  (1861).  The  judgment  creditor  may  not  appeal 
from  the  action  of  the  court  below  discharging  a  rule  to  show  cause  why 
the  order  of  sale  for  payment  of  debts  should  not  be  vacated.  If  the  judg- 
ment creditor  had  a  lien,  the  order  of  sale  was  for  his  benefit,  and  the  ap- 
propriate means  of  settling  the  estate;  if  not  a  lien  creditor,  he  had  no 
interest  in  the  question,  and  could  not  be  permitted  to  interfere  in  the  pro- 
ceeding at  all,  Everman's  App.,  67  Pa.  335  (1871).  Appeal  lies  from  de- 
cree of  confirmation  of  sale,  Robinson's  App.,  62  Pa.  213  (1869). 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       215 


APPENDIX  A. 

An  Act. 
Relating  to  the  Sale  and  Conveyance  of  Real  Estate. 

WHEREAS,  The  general  welfare  requires  that  real  estate  should 
be  freely  inalienable,1  and  be  made  productive  to  the  living  owners 
thereof : 

AND  WHEREAS,  In  matters  which  the  judiciary  is  competent 
to  hear  and  decide,  it  is  expedient  that  the  court  should  adjudi- 
cate them  after  a  full  hearing  of  all  parties,  rather  than  that  they 
should  be  determined  by  special  legislative  acts  upon  an  exparte 
hearing  :2 

SECTION  i.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  Commonwealth  of  Pennsylvania  in  General  As- 
sembly met,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  in  all  cases  where  real  estate  shall  have  been  acquired21  by 
descent  or  last  will,  the  Orphans'  Court,  and  in  all  other  cases 
the  Courts  of  Common  Pleas,3  of  the  respective  counties  of  this 
Commonwealth,  shall  have  jurisdiction  to  decree4  the  sale  ;5  mort- 

(1)  Obvious   misprint.     Should    be   "alienable."     The   preamble   as   it 
stands  contradicts  flatly  the  object  of  the  statute. 

(2)  See  §  10,  ante, 
(aa)  See  §  243,  ante. 

(3)  The  Act  of  April  27,  1855,  P.  L.  368,  Sec.  5,  provides  that  "when- 
ever the  estate  shall   have  been  derived  partly  by   deed  and  partly  by 
descent  or  will,  either  the  Court  of  Common  Pleas  or  the  Orphans'  Court 
may    entertain   jurisdiction    of    the    proceedings    to    make    sale    or    lease 
thereof.'  The  Act  of  April  21,   1856,   P.  L.  486,   Sec.   i,  provides:    Sec- 
tion  i.     Be  it  enacted  by  the   Senate  and  House  of   Representatives  of 
the    Commonwealth   of    Pennsylvania   in    General    Assembly   met,   and    it 
is  hereby  enacted  by  the  authority  of  the  same,  That  in  all  cases  where 
sales  of  the  real  estate  of  lunatics  have  been  made  under  the  Act  of  the 
eighteenth  of  April,  one  thousand  eight  hundred  and  fifty-three,  entitled 
"An  act  relating  to  the  sale  and  conveyance  of  real  estate  under  a  decree 
of  the  Court  of  Common  Picas,"  the  same  shall  be  valid  and  effectual, 
notwithstanding  such  real  estate  may  have  been  derived  by  descent  or  will. 
See  §  14,  ante. 

(4)  The  Act  of  April  13,   1854,  P.  L,.  368,   Sec.  3,  provides:    "In  all 
cases  wherein  any  of  the  courts  of  this  Commonwealth  might  have  author- 
ized any  sale  or  conveyance,  or  letting  on  ground-rent  or  otherwise,  and 
such  sale,  conveyance  or  letting  may  have  been  made  without  leave  of  such 
court,  it  shall  be  lawful   for  such  court,  if  approving  of  such  sale  or 


216       TEXT  of  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

gaging,6  leasing7  or  conveyance  upon  ground8  rent  of  such  real 
estate  in  the  cases  hereinafter  described:9  Provided,  That  any 
such  court  in  the  county  where  the  premises  shall  be  situated, 
shall  be  of  opinion  that  it  is  for  the  interest  and  advantage  of 
those  interested  therein,10  that  the  same  should  be  sold,  mort- 
gaged, leased  or  let  on  ground  rent,  and  may  be  done  without 
injury  or  prejudice  to  any  trust,  charity,  or  purpose  for  which 
the  same  shall  be  held;11  And  provided,  That  the  same  may  be 
done  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation.12 

Section  2.13  That  such  sale,  mortgaging,  leasing  or  conveyance 
upon  ground  rent  may  be  decreed  when  ever  real  estate  shall 
be13a  held  for  or  owned  by  minors,14  lunatics,15  or  habitual  drunk- 
conveyance  or  letting,  to  approve,  ratify  and  confirm  the  same,  with  the 
same  effect  as  if  such  decree  had  preceded  such  sale,  conveyance  or  let- 
ting." This  act,  of  course,  applies  to  all  proceedings  and  is  not  confined 
to  those  under  the  Price  Act,  Donnelly  v.  Byers,  234  Pa.  339  (1912). 
See  §  21,  ante. 

(5)  See  §  41,  ante. 

(6)  See  §  4.=?,  ante. 

(7)  See  §  48,  ante. 

(8)  See  §  50,  ante. 

(9)  See  §  13,  ante,  n.  18. 

(10)  See  §  26,  ante, 
(u)  See  §  32,  ante. 

(12)  See  §  33,  ante. 

(13)  The  Act  of  June  14,  1897,  P.  L.  144,  Sec.  i,  re-enacts  and  amends 
this   section,  adding  the  phrases   underlined  and  omitting  the  words  in 
brackets.     Confer  Act  of  June  15,  1897,  P.  L.  159  post. 

(133)   See  §  243,  ante. 

(14)  See  §  63s  ante.     See  Act  March  29,  1832,  P.  L.  190,  Sec.  31;    Act 
June  16,  1836,  P.  L.  682;  Act  March  16,  1847,  P.  L.  474,  Sec.  2;  Act  April 
3,  1851,  P.  L.  305. 

Act  of  May  21,  1901,  P.  L.  272,  provides:  Section  i.  Be  it  enacted,  etc., 
That  when  application  shall  hereafter  be  made  to  the  proper  Orphans' 
Court,  having  jurisdiction  of  the  accounts  of  any  guardian,  for  leave  to 
sell  or  mortgage  the  real  estate  of  a  ward,  or  any  part  of  the  same,  for 
the  payment  of  debts  or  for  other  purposes,  and  any  part  of  said  real 
estate  is  situated  partly  in  each  of  two  or  more  counties,  by  reason  of  a 
county  line  running  through  the  same,  the  court  shall  have  power  to  order 
and  direct  the  sale  or  mortgage  of  the  interest  of  the  ward  in  the  whole 
or  any  part  of  said  tract  of  land,  irrespective  of  the  county  boundary  lines, 
and  such  sale  when  confirmed  by  the  said  court  shall  be  as  effectual  to 
pass  the  title  of  such  real  estate  to  the  purchaser  as  if  the  whole  of  said 
tract  of  land  had  been  within  the  boundaries  of  the  county  having  juris- 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       217 

ards,16  so  duly  found  by  inquisition,  for  the  sole  and  separate 
use  of  married  women,17  for  religious,  beneficial  or  charitable 
societies  or  associations,18  incorporated  or  unincorporated,18  or 

diction  of  the  accounts  of  the  guardian :  Provided,  That  notices  of  said 
sale,  as  now  required  by  law,  be  given  in  all  the  counties  in  which  the 
land  is  situated,  and  that  a  certified  copy  of  all  proceedings  in  connection 
with  said  sale  or  mortgage,  including  the  return  of  sale,  be  recorded  in 
the  Orphans'  Court  of  each  county  in  which  said  land  is  situated :  And 
provided  further,  That  any  mortgage,  judgment,  bond  or  other  obligation 
taken  by  such  guardian  to  secure  the  purchase  money,  or  any  part  thereof, 
by  lien  on  such  lands,  shall  be  duly  recorded  or  entered  in  each  of  the 
counties  in  which  said  lands  lie,  as  now  required  by  law. 

Section  2.  The  Orphans'  Court  of  the  several  counties  of  this  Common- 
wealth, in  all  cases  where  under  existing  laws  the  court  has  power  to 
order  the  sale  of  real  estate  for  the  payment  of  debts  of  a  ward  and  for 
other  purposes,  may  decree  and  approve  a  private  sale,  if  in  the  opinion 
of  the  court,  under  all  the  circumstances,  a  better  price  can  be  obtained 
at  private  than  public  sale,  as  where  the  interest  shall  be  undivided  or 
for  any  other  sufficient  cause. 

(15)  See  §  76,  ante.    By  Act  of  April  n,  1866,  P.  L.  780,  the  husband 
or  wife  of  a  person  non  compos  mentis  may  sell,  mortgage,  lease,  or  con- 
vey on  ground  rent,   real  estate  under  direction  of  Court  of  Common 
Pleas  of  proper  county. 

(16)  See  §  76,  ante. 

(17)  See  §  80,  ante. 

(18)  See  §  83,  86,  ante.    The  Act  of  March  24,  1877,  P.  L.  39,  Sec.  i,  pro- 
vides :    "Section  i.  Be  it  enacted,  That  wherever  the  several  courts  of  this 
Commonwealth  are  authorized  by  existing  laws  to  decree  the  sale  and  con- 
veyance of  real  estate,  and  it  appears  to  the  court  of  the  proper  county,  on 
application,  that  such  real  estate  is  held  by  trustees  of  religious  societies, 
congregations  or  church  organizations  which  are  desirous  of  selling  and 
conveying  a  portion  of  said  real  estate  to  an  association  or  corporation,  for 
the  exclusive  purpose  of  a  cemetery  or  a  place  of  sepulchre  for  the  dead,  it 
shall  be  lawful  for  said  court  to  order  and  decree  a  private  sale  of  said  real 
estate,  at  such  price  and  upon  such  terms  and  conditions  as  shall  be  agreed 
upon  by  said  parties,  notice  of  said  application  to  be  given  to  all  parties 
interested  as  the  court  shall  direct;   the  sale  to  be  approved  by  the  court 
and  the  deed  acknowledged  as  required  by  existing  laws." 

The  Act  of  May  23,  1887,  P.  L.  168,  privides :  "Section  i.  Be  it  en- 
acted, etc.,  That  the  trustees,  treasurer  or  other  proper  officers  of  any 
church,  congregation,  presbytery  or  other  church  organization,  owning 
real  estate  used  as  a  burying  ground,  may,  whenever  so  desired  by  a  ma- 
jority vote  of  such  church,  congregation  or  church  organization,  owner  or 
owners  as  aforesaid,  apply  by  petition  to  the  Court  of  Common  Pleas  of 
the  county,  wherein  such  real  estate  may  be  located,  for  leave  to  abandon 
such  burying  grounds,  remove  and  re-inter  the  bodies  of  deceased  persons 
therein  buried,  and  to  sell  such  real  estate  in  fee,  clear  of  all  restriction. 

15 


218       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

for  or  by  any  other  corporation,10  or  by  trustees  for  any  public 
or  private  use  or  trust,20  and  although  there  may  exist  a  power 
of  sale,21  but  the  time  may  not  have  arrived  for  its  exercise,22 
or  any  preliminary  act  may  not  have  been  done  to  bring  it  into 
exercise,28  or  the  time  limited  for  its  exercise  may  have  expired,24 
or  any  one  or  more  persons  required  to  consent  or  to  join  in  its 
execution  may  have  become  non  compos  mentis,25  or  have  re- 
moved out  of  the  State,26  or  died,27  or  should  refuse  to  act  or 
unreasonably  withhold  consent;28  also  when  there  has  been  or 
shall  be  a  defective  appointment  in  any  deed,  or  last  will  and 
testament,  and  the  necessary  power  is  not  given  to  the  executor, 
devisee  or  appointee  To  make^sale~and^  conveyance  j5|_real  es- 
jtate.29  Also  whenever  the  owner  of  real  estate  may  have  been 
absent  and  unheard  from  for  seven  years,  under  those  circum- 


Upon  presentation  of  such  petition,  the  court  shall  make  such  order  re- 
lating to  publication  and  notice  to  parties  in  interest  as  may  seem  meet 
and  proper,  and,  after  final  hearing  of  all  parties  in  interest,  may  make 
such  decree  relating  to  the  abandonment  of  such  grounds  for  burial  pur- 
poses, the  removal  of  bodies  therefrom  and  the  sale  thereof,  as  may  be 
just  and  equitable ;  and,  when  no  person  in  interest  can  be  found,  said 
bodies  to  be  removed  and  separately  re-interred  in  some  suitable  burying 
ground,  and  each  grave  to  be  properly  marked  by  head  stone,  et  cetera, 
(provided  such  grave  was  so  marked  before  removal,)  by  the  trustees, 
treasurer  or  other  proper  officer  or  officers  of  the  church,  congregation, 
presbytery  or  other  church  organization,  owning  the  real  estate  so  used  as 
a  burying  ground:  Provided,  That  no  such  petition  shall  be  granted  ex- 
cept upon  condition  set  forth  in  the  decree,  requiring  the  petitioners  to 
purchase  the  rights  of  all  lot  holders  in  such  burying  grounds  and  to  se- 
cure the  consent  in  writing  of  the  near  relatives  of  decedents,  whenever 
such  relatives  shall  appear  as  parties  to  such  proceedings :  And  provided 
further,  That  any  party  in  interest  may  appeal  from  the  decree  of  such 
court  within  thirty  days." 

(19)  See  §  82,  ante. 

(20)  See  §  134,  ante. 

(21)  See  §  147,  ante. 
(212)  See  §  148,  ante. 

(23)  See  §  147,  ante. 

(24)  See  §  147,  ante. 

(25)  See  §  147,  ante. 

(26)  See  §  147,  ante. 

(27)  See  §  147,  ante. 

(28)  See  §  149,  ante. 

(29)  See  §  150,  ante. 


TEXT  of  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       219 

stances  from  which  the  law  would  presume  his  or  her  death.30 
Whenever  a  husband  shall  own  real  estate  having  a  wife  who 
is  a  lunatic,31  or  a  minor;32  whenever  a  married  woman  owns 
real  estate  and  her  husband  has  abandoned  her  for  two  years,33 
or  been  absent  and  unheard  from  for  seven  years.3*  Whenever 
a  decedent  shall  have  contracted  by  parol  to  sell  real  estate,35  and 
those  interested  do  not  think  it  expedient  to  plead  the  statute 
requiring  contracts  to  be  in  writing  to  enable  the  purchaser  to 
recover  the  real  estate  agreed  to  be  sold.  Whenever  a  decedent's  v 
real  estate  is  subject  to  the  lien  of  debts  not  of  record.36  When- 
ever real  estate  shall  be  entailed,37  or  contingent  remainders,38 
or  executory  devisees,39  or  vested  remainders  which  are  liable 
to  open  and  let  in  after-born  children  shall  be  limited  thereon.*0 
Or  whenever  in  proceedings  in  partition  in  equity  it  shall  appear 
that  real  estate  cannot  be  divided  without  prejudice  to  the  in- 
terests of  the  owners.41  And  also  whenever  real  estate  shall 
have  been  purchased*2  or  any  ground  rent  been  reserved*3  and 
be  held  by  any  person  acting  in  a  trust  or  fiduciary  capacity. 
And  such  decree  may  be  made,  whether  such  ownership  or  inter- 

(30)  See  §  169,  ante.    Confer  Act  May  28,  1913,  P.  L,.  369,  relating  to 
estates  of  persons  supposed  to  be  deceased. 

(31)  See  §  81,  ante. 

(32)  This  clause  practically  obsolete  since  the  Act  of  March  22,  1865, 
P.  L.  30.  which  provides:    "That  the  deed  of  conveyance,  executed  and 
acknowledged  by  a  wife,  in  conjunction  with  her  husband,  of  his  real  es- 
tate, shall  be  valid  and  effectual,  notwithstanding  the  minority  of  the  wife 
at  the  time  of  such  execution  and  acknowledgment,  and  any  such  deed, 
heretofore  made,  shall  be  as  valid  as  if  the  wife  had,  at  the  time,  been  of 
lawful  age." 

'  (33)  See  §  80,  ante. 

(34)  See  §  80,  ante. 

(35)  See  §  151,  ante. 

(36)  See  §  113,  ante. 

(37)  See  §  90,  ante. 

(38)  See  §  97,  ante. 

(39)  See  §  112,  ante. 

(40)  Clause  in  italics  added  by  re-enactment  of  June  14,  1897,  P.  L. 
144,  Sec.  2.    By  Act  of  June  15,  1897,  P-  L.  159,  "Lands  .   .   .  devised  or 
granted  for  life  or  for  the  life  of  another,  and  with  remainder  limited  to 
a  class  of  persons  some  or  all  of  whom  may  or  may  not  be  in  being  at 
the  time  of  the  decree."    See  §  103,  ante. 

(41)  See  §  156,  ante. 

(42)  See  §  56,  ante. 

(43)  See  §  50,  ante. 


220       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

est  shall  be  held  or  enjoyed  in  severally,  joint-tenancy,  copar- 
cenary or  in  common  with  others,44  and  generally  in  all  cases 
where  estates  have  been  or  shall  be  devised  or  granted  in  trust 
or  for  special  or-  limited  purposes,45  or  where  any  party  inter- 
ested therein  is  under  a  legal  disability  to  sell  and  convey  the 
same;46  Provided,  That  nothing  in  this  act  contained  shall  be 
taken  to  repeal  or  impair  the  authority  of  any  act  of  Assembly, 
general  or  private,  authorizing  the  sale  of  real  estate  by  decree 
of  court  or  otherwise,47  nor  to  affect  or  impair  any  right  or 
powers  otherwise  existing  in  any  person  or  corporation48  to 
sell,  mortgage,  lease,  or  let  on  ground  rent,  any  real  estate,  (and 
every  power  to  sell  in  fee  simple  real  estate)49  created  by  deed 
or  will,  shall  be  taken  to  confer  an  authority  to  sell  and  convey,50 
reserving  a  ground-rent  or  rents  in  fee,  and  the  same  to  release 
and  extinguish  according  to  law  and  the  stipulation  of  the  deed,51 
and  also  to  grant  and  convey  such  ground-rent  or  rents  to  any 
purchaser  or  purchasers  thereof,  free  of  all  trusts.52 

SECTION  3.  That  such  sale,  mortgaging,  leasing  or  conveyance 
upon  ground  rents,  may  be  decreed  on  the  petition53  of  any  trustee, 
guardian,  committee  or  person  interested,  clearly  setting  forth 
the  facts  needful  for  the  information  of  the  court  under  oath  or 
affirmation,  and  if  all  proper  parties  shall  not  have  voluntarily 
appeared  as  petitioners  or  respondents,  the  court  shall  fix  a  day65 
for  parties  to  appear,  and  cause  a  citation  to  be  served  on  all 
persons  in  being  who  shall  not  have  appeared,  and  who  shall 
have  any  present  or  expectant  interest  in  the  premises,  warning 
them  to  appear,  and  that  they  shall  be  heard  on  the  day  de- 
signed,56 and  for  those  who  cannot  otherwise  be  served,  cause 
advertisement  to  be  made  in  manner  most  likely  to  afford  notice, 

(44)  See  §  22,  ante. 

(45)  See  §  129,  ante. 

(46)  See  §  62,  ante. 
•    (47)  See  §  20,  ante. 

(48)  See  §  83,  ante. 

(49)  Clause  in  brackets  omitted   from  the   re-enactment  of  June   14, 
1897,  P-  L.  144,  Sec.  2.    Cfr.  Sener  v.  Ephrata  Borough,  176  Pa.  80  (1896). 

(50)  See  §  51,  ante. 

(51)  See  §  51,  ante. 

(52)  See  §  51,  ante. 

(53)  See  §  59,  ante. 

(55)  See  §  18,  ante. 

(56)  Misprint  for  designated. 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       221 

and  service  made  in  any  part  of  the  United  States  and  the  ter- 
ritories thereof,  with  oath  or  affirmation  of  the  fact,  taken  be- 
fore any  judge  or  justice  of  the  peace,  and  filed  of  record  shall 
be  good  service,  and  guardians  shall  be  served  and  appear  for 
their  wards,  and  if  minors  shall  have  no  guardian,  the  court 
shall  appoint  a  guardian  for  them;57  committees  shall  be  served 
and  appear  for  lunatics  and  habitual  drunkards,58  and  husbands 
shall  be  served  and  appear  with  their  wives,  except  husbands 
who  shall  have  abandoned  their  wives  for  two  years,  or  been 
absent  and  unheard  from  for  seven  years,59  and  if  parties  make 
default  in  appearing,  the  court  after  investigation  of  the  facts 
may  proceed  to  make  a  decree  in  the  premises;  Provided,  That 
in  case  of  the  appointment  of  a  guardian  by  the  court,  and  the 
payment  over  of  money  to  him,  or  of  the  payment  of  money  to 
any  former  guardian,  the  court  shall  take  adequate  security60 
for  the  faithful  application  of  such  money,  and  before  the  pay- 
ment of  any  money  to  any  guardian  not  within  the  court's  juris- 
diction, the  court  shall  be  duly  notified  that  adequate  security 
has  been  given  to  the  court  having  jurisdiction  over  him,  whether 
within  or  without  this  Commonwealth.61 

SECTION  4.  That  such  sales,  mortgages,  leasing  and  letting 
on  ground  rent,  shall  only  take  place  after  full  and  careful  in- 
vestigation by  the  court,  aided  when  deemed  necessary,  by  the 
report  of  a  competent  person,  to  be  appointed  by  the  court,62 
and  shall  be  made  by  trustees,  executors,  administrators,  guard- \/ 
ians,  committees,  or  owners  having  a  present  vested  interest,  as 
the  court  may  order,63  and  be  under  the  direction  and  subject 
to  the  approval  of  the  court  before  which  the  deed  shall  be  ac- 
knowledged,64 and  be  certified  under  seal  to  have  been  acknowl- 

(57)  See  §  65,  ante. 

(58)  See  §78,  ante. 

(59)  See  §  19,  ante. 

(60)  See  §  179,  ante. 

(61)  See  §  184,  ante. 

(62)  See  §  26,  ante. 

(63)  See  §  60,  ante. 

(64)  See  §  236,  ante.    Act  of  April  13,  1854,  P.  L.  368,  Sec.  i,  provides  : 
"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  Com- 
monwealth of   Pennsylvania  in  General  Assembly  met,  and  it  is  hereby 
enacted  by  the  authority  of  the  same,  That  in  all  cases  of  sales,  mort- 
gages, leasing,  and  letting  on  ground  rent,  of  any  real  estate  authorized 
under  the  act  to  which  this  is  a  supplement,  where  the  trustes,  executors, 


222       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

edged,  and  all  absolute  sales  in  fee  simple  (except  as  hereinafter 
provided)  shall  be  by  public  sale  or  vendue,  and  may  be  either 

administrators,  guardians,  committees,  or  other  persons  authorized  to 
make  such  sale,  mortgage  or  lease,  shall  reside  out  of  the  county  where 
such  real  estate  is  situate,  the  deed,  mortgage,  or  lease  thereof,  may  be 
acknowledged  before  the  Court  of  Common  Pleas  or  Orphans'  Court  of 
any  county  of  this  state,  where  the  person  or  persons  executing  the  same 
may  reside,  and  certified  under  the  seal  of  such  court  to  have  been  so  ac- 
knowledged; and  such  certificate  of  acknowledgment  shall  be  read  in 
open  court  of  the  county  where  the  real  estate  is  situate,  and  entered  upon 
the  records  thereof;  and  upon  being  so  entered,  shall  have  the  same  ef- 
fect as  if  the  deed,  mortgage  or  lease  had  been  acknowledged  before  said 
court,  as  now  required  by  law."  By  Act  of  April  I,  1863,  P.  L.  187,  per- 
sons executing  deed  a  mortgage  or  lease  who  reside  out  of  the  State  may 
acknowledge  as  provided  by  the  Act  of  Dec.  14,  1854,  P.  L,.  724. 

The  Act  of  March  23,  1867,  P.  L.  43,  Sec.  i,  provides,  "Be  it  enacted 
by  the  Senate  and  House  of  Representatives  of  the  Commonwealth  of 
Pennsylvania  in  General  Assembly  met,  and  it  is  hereby  enacted  by  the 
authority  of  the  same,  That  all  deeds  made  to  convey  real  estate,  sold 
under  an  act  passed  the  eighteenth  day  of  April,  eighteen  hundred  and 
fifty-three,  entitled  'An  Act  relating  to  the  sale  and  conveyance  of  real 
estate,'  being  acknowledged  in  court,  and  so  certified  to  have  been,  by 
the  clerk,  or  prothonotary,  as  required  by  said  act,  or  supplements,  may 
be  recorded  in  the  recorder  of  deeds  office,  without  other  acknowledgment." 

The  Act  of  April  17,  1866,  P.  L.  108,  providing  as  follows:  "Section 
I.  That  in  all  cases  where  sales,  mortgages,  or  leasings,  of  any  real  es- 
tate, have  heretofore  been,  or  shall  hereafter  be,  made,  under  the  pro- 
visions of  an  act  of  assembly,  entitled  'An  Act  relating  to  the  sale  and 
conveyance  of  real  estate/  approved  the  eighteenth  day  of  April,  one 
thousand  eight  hundred  and  fifty-three,  and  the  deeds,  mortgages,  or  leases, 
made  in  pursuance  of  such  sales,  mortgagings,  or  leasing,  have  been  ac- 
knowledged before  a  justice  of  the  peace,  or  other  officer,  having  author- 
ity, under  the  laws  of  this  Commonwealth,  to  take  the  acknowledgment 
of  deeds,  and  other  instruments  of  writing  therein,  such  deeds,  mortgages 
and  leases,  shall  be  as  valid  and  effectual,  to  all  intents  and  purposes,  as 
if  the  same  had  been  acknowledged  before  the  court,  and  in  the  manner 
specified  in  said  act."  (For  a  case  of  a  defective  acknowledgment  cured 
by  this  act,  see  Smyth  v.  Neill,  i  W.  N.  C.  43  (1874),  was  amended  by 
the  Act  of  April  22,  1903,  P.  L.  241,  to  read  as  follows:  "Section  i.  That 
in  all  cases  where  sales,  mortgagings  or  leasings  of  any  real  estate  have 
heretofore  been,  or  shall  hereafter  be,  made,  under  the  provisions  of  an 
act  of  assembly,  entitled  'An  Act  relating  to  the  sale  and  conveyance  of 
real  estate,'  approved  the  eighteenth  day  of  April,  one  thousand  eight 
hundred  and  fifty-three,  and  the  deeds,  mortgages  or  leases,  made  in  pur- 
suance of  such  sales,  mortgagings  or  leasings,  have  been  or  shall  hereafter 
be  acknowledged  before  a  justice  of  the  peace,  notary  public,  or  other 
officer  having  authority  under  the  laws  of  this  Commonwealth  to  take 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       223 

entirely  for  cash,  or  partly  on  credit  and  partly  for  cash,66  after 
full  advertisement  for  at  least  twenty  days,  by  hand-bills  posted 
in  at  least  Twenty  of  the  most  public  places  in  the  city  or  county 
where  the  premises  shall  be  situated,  and  in  at  least  two_news- 
papers,  not  less  than  three  times  in  each :  Provided,  That  if  the 
court  shall  be  of  opinion  that  under  the  circumstances  a  better 
price  can  be  obtained  at  private  than  at  public  sale,  as  where  the 
interest  be  undivided,  or  for  other  sufficient  cause,  the  court  may 


the  acknowledgments  of  deeds  and  other  instruments  of  writing  therein, 
such  deeds,  mortgages  and  leases  shall  be  as  valid  and  effectual,  to  all 
intents  and  purposes,  as  if  the  same  had  been  or  shall  hereafter  be  ac- 
knowledged before  the  court,  and  in  the  manner  specified  in  said  act." 

The  Act  of  April  23,  1909,  P.  L.  156,  provides:  "That  hereafter  it 
shall  and  may  be  lawful  for  county  treasurers,  county  commissioners, 
executors,  administrators,  trustees,  or  other  persons  acting  in  any  official 
or  representative  capacity,  where  now  required  or  authorized  by  law  to 
acknowledge  deeds  or  other  instruments  before  a  justice  of  the  peace, 
to  acknowledge  the  same  before  a  notary  public  or  any  other  officer 
authorized  by  law  to  take  acknowledgments  of  deeds;  and  any  acknowl- 
edgments of  deeds  or  other  instruments,  heretofore  made  as  authorized 
hereby,  are  validated  and  made  good  and  effectual :  Provided,  That  this 
act  shall  not  apply  to  any  case  heretofore  adjudicated,  or  in  which  pro- 
ceedings at  law  or  in  equity  are  now  pending." 

(66)  The  Act  of  March  22,  1859,  P.  L.  207,  provides:  "Section  i. 
That  in  all  sales  of  real  estate  under  the  order  of  the  Orphans'  Court 
authorized  by  the  laws  of  this  Commonwealth,  the  court  decreeing  the 
sale  shall  have  power  to  direct  the  terms  thereof  for  cash,  not  less  than 
one-fourth  of  the  purchase  money  at  the  time  of  the  confirmation  of  the 
sale,  and  the  balance  in  such  instalments,  and  at  such  times  as,  in  the 
opinion  of  the  court,  shall  be  for  the  interest  and  advantage  of  those 
interested  therein,  requiring  security  to  be  approved  by  the  court  in  at 
least  double  the  value  of  the  interest  proposed  to  be  sold,  before  such 
sale  shall  be  ordered  or  made :  Provided,  That  the  purchase  money  shall 
be  a  lien  on  the  premises  sold  until  fully  paid,  according  to  the  decree 
of  the  court. 

"Section  2.  That  all  sales  of  real  estate  heretofore  ordered  by  the  Or- 
phans' Court  as  aforesaid,  wherein  a  longer  time  than  one  year  shall 
have  been  directed  for  the  final  payment  of  the  purchase  money,  shall  be 
taken  and  deemed  to  have  the  same  force  and  effect,  and  be  as  valid  and 
binding  as  if  the  purchase  money  therein  had  been  ordered  and  directed 
to  have  been  paid  within  one  year  from  the  time  of  any  such  sale  or 
sales :  Provided,  That  this  act  shall  not  apply  to  the  City  of  Phila- 
delphia. See  §  44,  ante. 


224       TEXT  OF  THE;  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

approve  and  decree  a  private  sale,68  and  such  mortgaging,  leas- 
ing and  letting  on  ground  rent,  shall  be  upon  terms  and  at  rates 

(68)  See  §  41,  ante.  The  following  acts  probably  do  not  effect  the  Price 
Act,  particularly  since  the  amendment  of  1913.  The  Act  of  May  9,  1889, 
P.  L.  182,  provides:  "Section  I.  Be  it  enacted,  etc.,  That  from  and  after 
the  passage  of  this  act,  the  Orphans'  Court  of  the  several  counties  of 
this  Commonwealth,  in  all  cases  where,  under  existing  laws,  the  court 
has  power  to  order  the  sale  of  real  estate  for  the  payment  of  the  debts 
of  decedents  and  for  other  purposes,  may  decree  and  approve  a  private 
sale,  if  in  the  opinion  of  the  court,  under  all  the  circumstances,  a  better 
price  can  be  obtained  at  private  than  at  public  sale,  as  where  the  interests 
shall  be  undivided,  or  for  any  other  sufficient  cause. 

"Sestion  2.  All  acts  or  parts  of  acts  inconsistent  with  the  provisions 
of  this  act,  be  and  the  same  are  hereby  repealed.  The  Act  of  Juue  9, 
1911,  P.  L.  724,  as  amended  by  the  Act  of  June  12,  1913,  P.  L.  470,  pro- 
vides, 'Whereas,  the  act  of  the  General  Assembly  of  Pennsylvania,  ap- 
proved the  9th  day  of  May,  1889,  P.  L.  182,  entitled  "An  Act  relating  to 
Orphans'  Court  Sales,"  authorizing  the  Orphans'  Court  to  decree  and 
approve  private  sales  of  real  estate  for  the  payment  of  the  debts  of  a 
decedent,  and  for  other  purposes,  makes  no  provision  for  the  notice  to 
be  given  of  such  sales ;  and,  Whereas,  Questions  have  arisen  with  regard 
to  the  sufficiency  of  the  notice  to  creditors  and  others  interested  in  such 
real  estate,  as  to  the  title  of  such  real  estate  sold,  when  so  sold;  now, 
therefore, 

"Section  i.  Be  it  enacted,  etc.,  That  before  authorizing,  decreeing  or  ap- 
proving a  private  sale  of  real  estate,  for  the  payment  of  the  debts  of 
the  decedent,  public  notice  thereof  shall  be  given  by  advertisement 
printed  in  at  least  one  newspaper,  and  in  the  legal  periodical,  if  any, 
designated  by  the  rules  of  court  of  the  proper  county,  for  the  publication 
of  legal  notices,  published  in  the  county  where  such  real  estate  is  located, 
for  at  least  twenty  days  prior  to  the  date  fixed  by  such  order  for  author- 
izing, decreeing  or  approving  such  sale;  and  also  by  written  or  printed 
notices,  one  of  which  shall  be  posted  at  a  conspicuous  place  on  the  real 
estate  proposed  to  be  sold,  and  at  least  three  of  such  notices  shall  be 
posted  at  three  of  the  most  public  places  in  the  vicinity  of  such  real 
estate. 

"  'Section  2.  Before  authorizing,  decreeing  or  approving  such  sale  the 
court  shall  require  proof,  by  affidavit,  to  be  filed  in  the  proceeding,  that 
the  notice  required  by  the  first  section  hereof  has  been  given. 

"  'Section  3.  On  the  day  fixed  by  such  order  and  notice  for  authorizing, 
decreeing  or  approving  such  private  sale,  any  creditor  of  such  decedent, 
or  party  interested  as  heir,  devisee  or  intending  purchaser,  may  appear 
and  object  to  such  private  sale  on  account  of  the  price,  and  offer  to  give 
or  pay  a  substantial  increase  therefor;  and  the  court,  at  its  discretion, 
may  thereupon  decree  or  approve  such  sale,  or  refuse  to  decree  or  ap- 
prove the  same,  and  accept  any  substantially  increased  offer,  and  approve 
or  decree  such  real  estate  to  such  new  bidder,  upon  compliance  with  the 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       225 

to  be  approved  by  the  court,89  and  the  specific  execution  of  the 
contracts  of  decedents  upon  the  terms  and  at  the  price  proved  or 
admitted  to  have  been  agreed  upon  by  the  parties,69a  but  no  such 
private  sale,  leasing  or  letting  on  ground  rent,  shall  be  upon  terms 
or  at  rates  less  favorable  than  others,  who,  of  competent  ability 
to  contract  and  uniting  in  the  sale  of  undivided  interests,  shall 
accept;70  and  it  shall  be  the  duty  of  the  court  in  decreeing  sales, 
leases  and  conveyances  upon  ground  rent  of  real  estate,  to  order 
the  premises,  if  necessary,  to  be  so  subdivided71  as  to  command 
the  highest  price  or  greatest  rents,  and  for  such  purposes,  where 
the  premises  may  admit  of  or  require  it,  shall  have  power  to  lay 
out  roads,  streets  and  alleys,  and  to  vacate  such  as  shall  not  have 
been  paid  for,  or  received  into  actual  use  by  the  public,  if  found 
to  be  inconvenient,  and  to  make  an  unprofitable  division  of  the 
property:72  And  provided  further,  That  no  sale  or  sales  shall 

conditions  of  sale  and  giving  security  in  accordance  with  the  order  of 
the  court. 

"  'Section  4.  All  private  sales  of  real  estate  of  decedents  heretofore 
made  under  and  by  virtue  of  decrees  of  Orphans'  Court,  under  and  in  pur- 
suance of  the  said  Act  of  May  ninth,  one  thousand  eight  hundred  and 
eighty-nine,  shall  and  the  same  are  hereby  declared  to  be  valid  and  ef- 
fectual to  vest  in  the  purchasers  thereof  the  title  of  such  decedents  in 
the  real  estate  so  decreed  to  be  sold :  Provided,  That  adequate  security, 
conditioned  for  the  faithful  application  of  the  purchase  money,  shall  have 
been  given  by  such  executors  or  administrators,  as  the  case  may  be,  in 
accordance  with  such  decree.' " 

The  Act  of  July  21,  1913,  P.  L.  871,  validating  sales  under  the  Act 
of  1899,  in  certain  cases  provides  as  follows :  "Sec.  I.  Be  it  enacted,  etc., 
That  all  private  sales  of  real  estate  of  decedents,  heretofore  made  by  vir- 
tue of  decree  of  the  Orphans'  Court,  in  pursuance  of  the  act  approved  the 
ninth  day  of  May,  1889,  entitled,  'An  Act  relating  to  Orphans'  Court  sales,' 
which  were  not  advertised  in  accordance  with  the  provisions  of  said  act 
as  amended,  are  hereby  declared  to  be  valid  and  effectual  to  vest  in  the 
purchasers  thereof  the  title  of  such  decedents  in  the  real  estate  so  owned : 
Provided,  That  adequate  security,  conditioned  for  the  faithful  applica- 
tion of  the  purchase  money,  shall  have  been  given  by  such  executors  or 
administrators,  as  the  case  may  be,  in  accordance  with  such  decree:  Pro- 
vided, however,  That  this  act  shall  not  affect  any  litigation  now  pending 
in  any  court  of  this  Commonwealth,  under  the  act  as  amended." 

(69)  See  note  66  ante. 
(69a)   See  §  151,  ante. 

(70)  See  §  22,  ante. 

(71)  See  §  58,  ante. 

(72)  See  §  58,  ante. 


226       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

be  ordered  or  made  under  the  provisions  of  this  act,  in  any  case, 
until  security,73  to  be  approved  by  the  Court  of  Common  Pleas, 
or  Orphans'  Court,  be  given  in  at  least  double14  the  value  of  the 
interest  proposed  to  be  sold.75 

SECTION  5.  That  the  title  of  purchasers76  under  all  such  sales, 
mortgages,  or  conveyances  upon  ground  rent,  shall  be  a  fee 
simple  title,  indefeasible  by  any  party  or  persons,  having  a  pres- 
ent or  expectant  interest  in  the  premises,76  and  be  unprejudiced 
by  any  error  in  the  proceedings  of  the  court,76  and  by  every  such 
public  sale  the  premises  sold  shall  be  discharged  from  all  liens,77 
and  every  such  sale,  and  every  conveyance  in  fee  simple  upon 
ground  rent,  shall  have  all  the  effect  of  any  other  proceeding  or 
conveyance  now  authorized  by  law  and  strictly  conducted  to  a 
final  conclusion,  to  bar  any  estate  tail,78  and  to  defeat  contingent 
remainders,79  and  in  such  case  shall  vest  in  the  tenant  in  tail,  or 
particular  tenant,  whether  minor,  feme  covert,  or  otherwise,  who 
after  such  proceeding  or  conveyance  might  have  become  entitled 
to  the  absolute  fee  simple  title,  the  absolute  right  to  the  purchase 
money,80  and  the  ground  rents  reserved ;  and  such  sales  and  con- 
veyances on  ground  rent  shall  also  bar  any  right  of  the  Com- 

(73)  See  §  183,  ante. 

(74)  See  §  179,  ante. 

(75)  The  Act  of  Feb.  24,   1834,  P-  L-  7°,  Sec.  43,  provides  that  no 
executor  or  administrator  shall  have  power  to  execute  any  order  or  decree 
of  the  Orphans'  Court  for  the  sale  of  any  real  estate  or  to  receive  the  pro- 
ceeds of  a  sale  made  by  authority  of  law  without  giving  security  to  be  ap- 
proved of  by  the  Orphans'  Court  having  jurisdiction  of  his  accounts.    The 
Act  of  March  23,  1867,  P.  L.  43,  Sec  i,  provides,  inter  alia,  that  the  security 
required  by  said  act,  may  be  approved  by  the  proper  court,  of  like  juris- 
diction, of  the  county  in  which  the  grantor,  or  one  of  them,  is  resident, 
and  be  certified,  under  seal  of  such  court,  to  that  wherein  the  sale  was 
decreed ;    and  such  certificate  shall  be  copied  on  the  records  thereof. 

(76)  See  §  197,  ante. 

(77)  The  Act  of  March  23,  1867,  P-  L-  43.  Sec.  2,  provides  as  follows: 
"That  private  sales,  made  by  order  of  court,  under  the  said  Act  of  the 
eighteenth   of   April,   one   thousand   eight   hundred   and    fifty-three,    shall 
discharge  the  premises  sold  from  the  lien  of  the  debts  of  the  decedent, 
except  debts  of  record,  and  debts  secured  by  mortgage:    Provided,  That 
the  security,  required  by  said  act,  shall  have  been  duly  entered."     See  § 
259,  260,  ante. 

(78)  See  §  90,  ante. 

(79)  See  §  97,  ante. 

(80)  See  §  108,  ante. 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       227 

monwealth  to  forfeit  real  estate  that  may  have  been  held  by  or 
for  any  corporation  beyond  what  has  been  authorized,  if  no  pro- 
ceeding to  procure  a  forfeiture  shall  have  been  commenced81  be- 
fore petition  filed  for  a  sale  or  letting  on  ground  rent:  Pro- 
vided, That  the  petition  shall  set  forth  an  explanation  of  the 
title,  and  of  the  purpose  to  bar  the  entail  defeat  the  contingent 
remainder82  or  the  right  of  the  Commonwealth  to  have  inquisi- 
tion for  any  estate  defeasible  as  aforesaid  :83  And  provided,  That 
the  purchase  money  or  rent  reserved  shall  be  a  lien  on  the  prem- 
ises sold  or  let,  until  fully  paid  according  to  the  decree  of  the 
court.84 

SECTION  6.  That  the  purchase  money,  or  mortgage  money, 
ground  or  other  rent  reserved,  shall  in  all  respects  be  substituted 
for  the  real  estate  sold,  mortgaged,  or  let,85  as  regards  the  en- 
joyment and  ownership  thereof,  after  the  payment  of  liens,  and 
shall  be  held  for  or  applied  to  the  use  and  benefit  of  the  same 
persons,  and  for  the  same  estate  and  interest,  present  or  future, 
vested,  contingent,  or  executory,  as  the  real  estate  sold,  mort- 
gaged or  let,  had  been  held,86  except  only  such  remainders,  after 
an  entailment87  or  contingent  remainders,88  as  shall  have  been 
barred  or  defeated  as  aforesaid,  and  those  entitled  to  a  present 
interest  in  such  real  estate,  shall  receive  the  interest  of  the  pro- 
ceeds or  rents  thereof,89  unless  expressly  directed  to  accumulate  :90 
Provided,  That  no  principal  moneys  raised  by  sale  or  mortgage,91 
as  aforesaid,  shall  be  expended  for  any  other  purpose  than  for 
the  payment  of  liens  upon  or  the  improvement  of  the  same  real 
estate  when  mortgaged,  or  other  real  estate  when  held  for  the  same 
uses  and  persons,  unless  the  same  be  required  for  the  maintenance 
or  education  of  parties  having  the  like  interests  vested  or  ex- 

(81)  See  §  84,  ante. 

(82)  See  §  108,  ante. 

(83)  See  §  84,  ante. 

(84)  See  §  44,  ante. 

(85)  See  §  187,  ante. 

(86)  See  §  187,  ante. 

(87)  See  §  93,  ante. 

(88)  See  §  108,  ante. 

(89)  See  §  108,  ante. 

(90)  This  clause  must  be  read  in  subservience  to  Sec.  9  relating  to 
accumulations,  for  a  discussion  of  which  see  Foulke,  Rule  Against  Per- 
petuities, etc.,  in  Penna.,   (1909)   Chap.  25. 

(91)  See  §  47,  ante. 


228       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

pectant,  and  can  be  equally  and  equitably  so  applied,  and  without 
diminution  of  the  capital  that  may  of  right  become  the  property 
of  parties  having  unbarred  interests  or  title  in  remainder,92  or 
by  executory  devise,93  and  it  shall  be  the  duty  of  the  court  to 
decree  the  proper  application  of  all  purchase  or  mortgage  moneys 
and  rents,  with  the  aid  of  an  auditor,  when  deemed  necessary 
to  the  discharge  of  liens  and  to  parties  interested,  as  and  when 
they  may  be  entitled,  and  before  any  decree  shall  be  executed,95 
the  person  or  persons  entrusted  to  execute  the  same,  shall  give 
adequate96  security  to  the  Commonwealth,  to  be  approved  by  the 
court,97  conditioned  for  the  faithful  execution  of  the  trust  and 
proper  application  of  all  moneys  to  be  received,  according  to  the 
trust  and  decree  of  the  court,  which  security  shall  enure  to  the 
benefit  of  all  parties  interested,  and  such  security  being  so  given, 
no  purchaser98  or  lessee99  shall  be  bound  to  see  to  the  application 
of  the  purchase  money  or  rents,  or  be  in  any  manner  liable  to  or 
affected  by  the  former  trusts  or  limitations  upon  the  premises. 
SECTION  7.  That  it  shall  be  lawful  for  trustees,  guardians, 
committees,  married  women,  and  corporations,  in  all  the  cases 
aforesaid,  under  the  decree  of  the  court  as  aforesaid,  and  with 
the  like  effect  and  indemnity  to  them  in  acting  thereunder,  to 
make  and  take  conveyances  by  deed,  acknowledged  in  court, 
without  public  sale,  in  order  to  square  and  adjust  lines  between 
adjoining  owners,100  to  make  and  take  conveyances,  to  perfect 
the  partition  of  real  estate101  held  in  join  tenantcy,  coparcenary, 

(92)  See  §  108,  ante. 

(93)  See  §  112,  ante. 

(95)  See  §  182,  ante. 

(96)  See  §  179,  ante. 

(97)  See  §  177,  ante. 

(98)  See  §  183,  ante. 

(99)  Mortgagee  is  omitted,  probably  a  printer's  error,  as  there  is  just 
as  much  reason  for  protecting  the  mortgagee  as  for  protecting  the  pur- 
chaser or  lessee.     Purchaser  may  perhaps  be  taken  to  include  a  grantee 
of  a  conveyance  on  ground  rent. 

(100)  See  §  55,  ante. 

(101)  See  §  157,  ante.    The  Act  of  May  2&  1913,  P.  L.  345,  provides: 
"Section  I.    Be  it  enacted,  etc.,  That  when  real  estate  in  this  Common- 
wealth is  held  in  common,  and  one  or  more  of  the  co-tenants  is  or  are 
minors,  and  all  of  the  parties  who  are  sui  juris,  together  with  the  guard- 
ians of  the  estates  of  minors  interested,  desire  to  make  amicable  par- 
tition of  said  land  and  have  agreed  to  a  proper  division  of  the  same,  it 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       229 

or  in  common  with  others,  to  purchase102  other  real  estate,  when 
needful,108  to  that  already  owned  by  any  such  party,  or  useful 
to  the  business  thereupon  carried  on,  or  when  necessary,  to 
protect  any  security  or  rent  held  on  property  exposed  to  judicial 
sale  :104  Provided,  That  no  corporation  shall  be  so  authorized  to 
purchase  beyond  its  charter  license:105  And  provided,  That  no 
purchase  or  sale  by  authority  of  this  act,  shall  change  the  course 
of  descent  or  transmission  of  any  property  changed  in  its  nature 
by  virtue  thereof,106  as  respects  persons  who  are  not  of  com- 
petent ability  to  dispose  of  it,107  and  all  persons  entrusted  with 
moneys  raised  under  this  act  shall  be  authorized  to  file  their  ac- 
counts108 in  the  court  whence  their  authority  was  derived,  and 
upon  such  notice  as  the  court  may  order  to  parties  interested,  or 
after  being  audited,  if  deemed  necessary,  or  by  consent  of  all 
parties  interested,  such  accounts  may  be  finally  confirmed,  and 
upon  payment  of  the  balance,  as  may  be  decreed  by  the  court, 
such  accountants109  may  be  fully  discharged  from  the  trust.110 

shall  be  lawful  for  the  Orphans'  Court  of  the  proper  county,  upon  the 
petition  of  any  guardian  of  the  estate  of  any  minor  or  minors  interested, 
to  authorize  and  empower  the  petitioner  to  join  with  the  co-tenants  of 
said  minors  in  a  proper  deed  or  conveyance  to  effect  such  amicable  par- 
tition. Provided,  That  the  court  shall  be  of  opinion  that  it  is  for  the  in- 
terest and  advantage  of  the  estate  of  said  minor  that  such  partition 
should  be  made. 

(102)  See  §  56,  ante. 

(103)  The  word  adjoining  should  be  supplied  here  to  make  sense. 

(104)  See  §  56,  ante.     This  clause  seems  to  be  declaratory  of  the  ex- 
isting law. 

(105)  See  §  56,  ante. 

(106)  See  §  189,  ante. 

(107)  See  §  190,  191,  ante. 

(108)  See  §  188,  ante. 

(109)  See  §  188,  ante. 

(no)  The  Act  of  April  18,  1864,  P.  L.  462,  Sec.  i,  provides,  "That  it 
shall  be  lawful  for  trustees,  guardians,  committees,  married  women,  and 
corporations,  in  addition  to  the  powers  conferred  by  the  seventh  section 
of  the  act  to  which  this  is  a  supplement,  under  the  decree  of  the  proper 
court,  and  with  the  like  effect  and  indemnity  to  them  in  acting  there- 
under, to  make  and  take,  or  to  join  with  owners  of  other  undivided  in- 
terests in  making  and  taking  conveyances,  by  deed  acknowledged  in 
court,  and  without  public  sale,  in  order  to  change,  in  part,  or  in  whole, 
the  route,  or  location,  of  any  right  of  way,  or  passage,  existing  over, 
and  upon,  adjoining,  or  other  lands :  Provided,  The  court  shall  be  of 
opinion,  that  is  for  the  interest  and  advantage,  of  the  owner,  or  owners, 


230       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

SECTION  8.  That  in  all  cases  and  proceedings  under  this  act, 
appeals111  may  be  taken  to  the  Supreme  Court  from  the  Or- 
phans' Court  as  now  provided  by  law  in  other  cases,  and  in  the 
Court  of  Common  Pleas,  as  provided  in  equity  cases,  in  the  re- 
spective counties  of  the  State:  Provided,  That  if  any  decree  be 
carried  into  execution  before  the  appeal  be  perfected,111  and  writ- 
ten notice  thereof  given  to  any  vendee,  mortgagee,  or  lessee, 
any  reversal  thereof  shall  not  affect  the  right  or  title  of  such 
vendee,  mortgagee,  or  lessee,  but  the  purchaser  or  mortgage 
money,  or  rents  shall  stand  in  lieu  of  the  premises  sold  or  mort- 
gaged, or  leased,  so  far  as  thus  encumbered:  Provided  further, 
That  before  any  decree  be  carried  into  effect  to  afford  such  in- 
demnity, twenty  days  be  allowed  from  its  entry111  to  take  and 
perfect  such  appeal.112 

SECTION  10.  That  the  directions  given  in  the  sixth  section 
of  this  act  in  regard  to  the  security113  to  be  given  in  cases  of 
sales,  mortgage,  or  letting  of  real  estate,  and  the  condition  of 
the  bond  or  security  therein  prescribed,  shall  apply  to  all  cases 
of  sales  or  mortgage  of  real  estate  by  order  of  the  courts  of  this 
Commonwealth:  And  provided,  That  no  decree  for  the  sale, 
mortgaging  or  letting  of  any  real  estate  under  the  provisions  of 
this  act,  shall  be  made  except  when  the  president  of  the  court,  or 
the  law  judge  or  judges  thereof,  shall  be  present,114  and  that  the 
acts  in  relation  to  special  courts,  where  the  president  judge  shall 
be  interested,  related  to  parties  in  interest,  or  otherwise  incapable 
of  acting,  shall  apply  to  all  such  provisions. 

of  the  land,  to  which  such  right  of  way  is  appurtenant,  that  such  change 
of  route,  or  location,  be  made :  And  provided  further,  That  it  shall  be 
in  the  discretion  of  the  court,  in  such  cases,  to  require  security,  or  not, 
from  the  person  or  persons,  aforesaid,  making  or  taking,  such  convey- 
ances." 

(in)  See  §  271,  ante. 

(112)  Section  9,  relating  to  Accumulations,  is  omitted   from  the  dis- 
cussion in   this  book.     See   Foulke,   Rule   Against   Perpetuities,   etc.,   in 
Penna.   (1909),  Chap.  25,  p.  371,  for  discussion  of  it. 

(113)  See  §  177,  ante. 

(114)  The  law  judge  is  presumed  to  be  present,  and  his  presence  need 
not  be  affirmatively  shown  on  the  record,  Morrison  v.  Nellis,  115  Pa.  41 
(1887),  Trunkey,  J.,  at  46;    s.  c.  19  W.  N.  C.  20,  44  L.  I.  187,  34  Pitts. 
L.  J.  274,  14  Lane.  L.  R.  96. 


TEXT  of  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       231 

Sale  of  Estates  Amounting  to  Less  than  a  Thousand  Dollars. 

SECTION  i.  That  from  and  after  the  passage  of  this  act,  when- 
ever any  person  shall  die  siezed  of  real  estate  valued  at  not  more 
than  one  thousand  dollars,  and  the  parties  in  interest  desire  the 
same  to  be  converted  into  money  for  distribution,  it  shall  be  lawful 
for  the  Orphans'  Court  of  the  proper  county,  in  its  discretion, 
upon  the  joint  petition  of  the  widow  and  heirs,  and  the  guardians 
or  committees  of  such  as  are  minors  or  under  disabilities,  in 
whom  the  real  estate  of  the  decedent  shall  have  vested,  setting 
forth  the  description  of  the  property,  the  desire  to  have  the  same 
sold  and  its  estimated  value  duly  sworn  to,  together  with  the  affi- 
davit of  two  disinterested  persons,  stating  that  the  real  estate 
is  not  worth  more  than  one  thousand  dollars,  to  order  the  exec- 
utor, administrator  or  trustee  to  make  sale  and  proceed  in  all 
respects  in  the  manner  now  provided  by  existing  laws  in  cases 
of  the  sale  of  real  estate  for  the  payment  of  debts  of  a  decedent, 
and  the  proceeds  of  such  sale,  after  the  payment  of  the  expenses 
thereof,  shall  be  distributed  to  and  among  those  entitled  thereto, 
the  same  as  real  estate.116 

Lease  of  Mining  Lands. 

That  whenever,  under  the  provisions  of  the  aforesaid  Act  of 
eighteenth  of  April,  one  thousand  eight  hundred  and  fifty-three, 
and  the  several  supplements  thereto,  the  courts  of  this  Common- 
wealth or  any  of  them,  have  power  to  decree  a  lease  of  lands 
for  mining  purposes,  it  shall  be  further  lawful  for  the  said  courts 
to  order  and  decree  that  such  lands  may  be  so  combined  and 
consolidated  with  other  adjoining  lands,  as  to  form  one  tract  in 
which  the  several  persons  or  parties  so  combining  and  consoli- 
dating shall  become  seized  of  undivided  interests,  proportionate 
to  their  several  divided  interests  before  such  combination  and 
consolidation,  and  that  the  rents  or  royalties  to  be  received  under 
such  lease  shall  be  in  the  like  proportions.111 

Sale  for  Distribution  on  Petition  of  Widow  and  Heirs. 

The  Act  of  June  12,  1893,  P.  L.  46i,118  §  i,  provides:  Section 
i.  Be  it  enacted,  etc.,  That  whenever  any  person  shall  die 
seized  of  real  estate  and  the  parties  in  interest  desire  the  same 

(116)  Act  of  May  14,  1874,  P.  L,.  166. 

(117)  Act  of  June  8,  1874,  P.  L.  277,  Sec.  i. 

<ii8)  As  amended  by  the  Act  of  May  23,  1913,  P.  L.  304. 


232       TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

to  be  converted  into  money  for  distribution  it  shall  be  lawful  for 
the  Orphans'  Court  of  the  proper  county,  in  its  discretion,  upon 
the  joint  petition  of  the  widow  and  heirs  and  the  guardians  or 
committees  of  such  as  are  minors  or  under  disabilities,  in  whom 
the  real  estate  of  the  decedent  shall  have  vested  by  descent  or 
will,  and  legatees  whose  legacies  are  charged  on  said  real  estate 
or  the  representatives  of  such  legatees  as  may  be  deceased 
setting  forth  the  description  of  the  property,  the  desire  to 
have  the  same  sold,  to  order  the  executor,  administrator  or  a 
trustee  to  make  sale  after  he  shall  have  given  bond  with  one  or 
more  sureties  in  double  the  appraised  value  of  the  real  estate, 
to  be  approved  by  the  court,  and  proceed  thereafter  in  all  re- 
spects in  the  manner  now  provided  by  existing  laws  in  cases  of 
the  sale  of  real  estate  under  proceedings  in  partition,  and  the 
proceeds  of  such  sale  after  the  payment  of  the  expenses  thereof 
shall  be  distributed  to  and  among  those  entitled  thereto,  the  same 
as  real  estate.  Provided,  That  such  sale  shall  have  the  same  ef- 
fect in  all  respects  as  a  public  sale  in  proceedings  in  partition  of 
real  estate  under  existing  laws. 

Act  of  1897  Providing  for  Remainders  to  a  Class. 

The  Act  of  June  15,  1897,  P.  L.  159,  provides  as  follows:  The 
several  Orphans'  Courts  of  this  Commonwealth  shall  have  juris- 
diction to  decree  the  public  or  private  sale,  mortgaging,  leasing 
or  conveyance  upon  ground  rent,  of  lands  within  their  respective 
counties  which  have  been  or  shall  be  devised  or  granted  for  life, 
or  for  the  life  of  another,  and  with  remainder  limited  to  a  class 
or  persons,  some  or  all  of  whom  may  not  be  in  being  at  the  time 
of  the  decree  for  such  public  or  private  sale,  mortgaging,  leasing 
or  conveyance  upon  ground  rent:  Provided,  That  the  court  to 
which  such  application  may  be  made  shall  be  of  the  opinion  that 
it  is  for  the  interest  and  advantage  of  those  interested,  or  who 
may  become  interested  therein,  that  such  lands  should  be  sold, 
mortgaged,  leased  or  conveyed  upon  ground  rent,  and  that  the 
same  may  be  done  without  injury  or  prejudice  to  any  trust, 
charity  or  purpose  for  which  such  lands  may  be  held,  and  that 
the  same  may  be  done  without  violating  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation. 

Sec.  2.  That  the  proceedings  for  such  public  or  private  sale, 
mortgaging,  leasing  or  conveyance  upon  ground  rent  shall  be  in  all 


TEXT  OF  THE  PRICE  ACT  AND  ITS  SUPPLEMENTS.       233 

respects  the  same  as  are  now  provided  by  existing  laws  in  cases 
v/here  contingent  remainders  or  executory  devises  are  limited,  and 
a  decree  of  the  court  is  sought  for  the  sale,  mortgaging,  leasing  or 
conveyance  upon  ground  rent  of  the  land.  And  the  decree  of 
court  made  under  this  act  shall  have  the  same  effect  as  to  title, 
discharge  of  liens,  and  in  all  other  respects  as  in  the  instances 
last  above  enumerated.  And  the  purchase  money,  mortgage 
money,  ground  or  other  rent  reserve  shall  in  all  respects  be  sub- 
stituted for  the  land  sold,  mortgaged  or  let,  as  regards  the  en- 
joyment and  ownership  thereof  after  payment  of  liens,  and  shall 
be  held  for  or  applied  to  the  use  and  benefit  of  the  same  persons 
and  for  the  same  estates  and  interests,  present  or  future,  vested, 
contingent  or  executory  as  the  lands  so  sold,  mortgaged  or  let  had 
been  held.  And  the  court  shall  make  such  order  or  orders  as  to 
the  distribution  or  investment  of  such  funds  as  may  be  requisite  to 
protect  the  interests  of  all  persons  who  are  or  may  become  entitled 
thereto,  or  to  any  part  thereof,  whether  such  persons,  or  any 
of  them,  are  in  being  at  the  time  of  such  order  and  have  vested 
interests  therein,  or  may  come  into  being  before  the  remainder 
is  actually  vested  in  possession  upon  the  determination  of  the  par- 
ticular estate  and  become  entitled  to  have  the  remainder  open 
and  let  them  in. 

All  sales,  mortgages,  or  lettings,  or  conveyances  upon  ground 
rent,  heretofore  made  under  decrees  of  the  Orphans'  Court,  or 
Court  of  Common  Pleas  of  this  Commonwealth  in  cases  within 
the  scope  and  operatidn  of  this  act,  and  which  have  been  fully 
consummated  in  good  faith,  are  hereby  validated. 

Sale  of  Property  of  Weak-Minded  Persons. 

The  Act  of  May  28,  IQO/,1  provides  as  follows :  Sec.  6.  The 
guardian  so  appointed  shall  have  precisely  the  same  powers,  and 
be  subject  to  the  same  duties,  as  a  committee  on  lunacy  in  the  State 
of  Pennsylvania.  The  court  appointing  such  guardian  shall  have 
full  power,  over  the  same,  in  directing  an  allowance  for  the  said 
ward,  and  for  the  support  and  maintenance  of  his  wife  or  his 
or  her  children,  and  the  education  of  his  or  her  minor  children, 
and  shall  enter  a  decree  of  sale,  mortgaging,  leasing  or  convey- 

(i)  P.  L.  292,  amending  the  Act  of  June  19,  IQOI,  P.  L.  574,  Sec.  a, 
which  amended  the  Act  of  April  28,  1899,  P.  L,.  112,  which  amended 
Sec.  6  of  the  Act  of  June  25,  1895,  P.  L-  3°°. 

16 


234       TEXT  OF  THE;  PRICE  ACT  AND  ITS  SUPPLEMENTS. 

ance  upon  ground  rent,  of  the  real  estate  or  any  part  thereof  of 
the  said  ward,  whenever,  in  the  opinion  of  the  court,  it  is  nec- 
essary for  the  support  and  maintenance  of  the  said  ward  or  his 
family,  or  the  education  of  his  or  her  minor  children,  or  the  pay- 
ment of  his  or  her  debts,  or  where  it  is  for  the  interest  and  ad- 
vantage of  the  said  ward  that  the  same  shall  be  sold,  mortgaged, 
leased  or  let  on  ground  rent ;  and  all  absolute  sales  in  fee  simple, 
except  as  hereinafter  provided,  shall  be  by  public  sale  or  vendue, 
and  may  be  either  entirely  for  cash,  or  partly  on  credit  and  after 
full  advertisement,  for  at  least  twenty  days,  by  handbills  posted 
in  at  least  twenty  of  the  most  public  places  in  the  city  or  county 
where  the  premises  shall  be  situated,  and  in  at  least  two  news- 
papers, not  less  than  three  times  in  each:  Provided,  That  if  the 
court  shall  be  of  the  opinion  that,  under  the  circumstances,  a 
better  price  can  be  obtained  by  private  sale  than  at  public  sale, 
the  court  may  decree  and  approve  the  same.  Such  sale,  mortgag- 
ing, leasing  and  letting  on  ground  rent  shall  be  upon  terms  and 
rates  to  be  approved  by  the  court.  When  the  said  real  estate 
is  situated  in  the  same  county  in  which  the  said  person  shall  re- 
side, or  in  another  county  or  counties,  and  the  court  shall  be 
satisfied  of  the  propriety  of  a  sale,  mortgage  or  leasing,  or  letting 
upon  ground  rent,  upon  such  real  estate  or  any  part  thereof  not 
within  their  jurisdiction,  it  shall  be  lawful  for  such  court  to 
make  an  order  or  decree  authorizing  such  guardian  to  sell,  mort- 
gage, lease  or  let  upon  ground  rent,  all  the  real  estate  of  the  ward, 
or  so  much  thereof  as  the  court  may  think  necessary  and  as  it 
may  designate.  Thereupon  it  shall  be  the  duty  of  the  Court 
of  Common  Pleas  of  the  county  wherein  the  real  estate  so  desig- 
nated is  situated,  upon  the  petition  of  such  guardian,  to  make 
an  order  for  the  sale,  mortgaging,  leasing  or  letting  upon  ground 
rent,  of  said  real  estate,  or  so  much  thereof  as  the  court,  appoint- 
ing said  guardian  by  its  order,  shall  designate;  and  such  guard- 
ian shall  in  all  cases  make  a  return  of  his  proceedings  to  the  said 
court  in  the  county  in  which  the  real  estate  was  sold,  mortgaged, 
leased,  or  let  upon  ground  rent,  shall  be  found  only.  If  the  same 
be  approved  by  the  court,  it  shall  be  confirmed,  and  such  guardian 
shall  make  a  return  of  said  proceedings  to  the  court  by  which 
said  guardian  was  appointed.  The  said  guardian  shall  give  such 
bonds,  and  file  such  accounts,  at  such  periods  as  the  court  shall 
determine. 


APPENDIX  B. 

FORMS. 

Page. 

Preliminary, 235 

Title, 235 

Description  of  the  premises,   236 

Jurisdictional   averments,    236 

Reasons  for  the  sale,  etc.,   237 

Form  of  the  petition, 237 

Forms  of  petitions  and  decrees  under  the  Price  Act,  239 

(1)  Private  sale  of  interest  of  minor  in  the  entire  premises,  ...  239 

(2)  Private  sale  of  undivided  interest  of  a  minor,  242 

(3)  Private  sale,  property  subject  to  lien  of  debts  not  of  record,  245 

(4)  Private  sale  of  trust  property.    Time  for  exercise  of  power 

expired,   247 

(5)  Petition  to  join  with  other  undivided  interests  to  change 

location  of  right  of  way  over  adjoining  lands 249 

(6)  Exchange,    252 

(7)  Contingent  remainders  to  children,  private  sale,  254 

(8)  Contingent  remainders  to  a  class  other  than  children,  pri- 

vate sale 257 

(9)  Contingent  remainder  to  an  ascertained  person,  private  sale,  259 

( 10)  Executory  devise.     Private  sale,   261 

(n)   Private  sale  of  redeemable  ground  rent  264 

(12)  Private  sale  of  irredeemable  ground  rent,   266 

(13)  Authority  to  join  in  amicable  partition,  268 

(14)  Ratification  of  amicable  partition  already  made,   270 

(15)  Persons  absent  and  unheard   from   for  more  than   seven 

years,   272 

(16)  Public  sale,  trust  for  a  charity,  276 

Public  sale,  subdividing  tract  and  vacating  roads,  278 

Private  sale,  trustee  without  power  of  sale,  281 

(19)  Private  sale,  interest  of  a  lunatic, 284 

(20)  Mortgage  of  interest  of  a  minor 286 

Preliminary. 

o 

Before  proceeding  to  the  consideration  of  specific  forms,  we 
shall  introduce  a  few  perliminary  observations  and  refer  to  some 

of  the  cases  as  to  questions  of  the  forms  of  the  petition  and  the 
decree. 

Title. 

It  is  of  great  importance  that  the  petition  should  set  out  the  title 
to  the  land  and  how  it  is  derived,  who  are  the  parties  interested, 
and  how  their  interests  arise.  This  requirement  is  frequently 

235 


236  FORMS  OF  PETITION  AND  DECREE. 

overlooked,  and  averment  is  inserted  merely  that  the  petitioner  is 
interested  in  the  land  or  that  so  and  so  are  the  parties  interested.1 

The  petition  should,  when  the  title  is  derived  under  a  will,  have 
a  copy  of  the  will  added.  In  the  absence  of  a  copy,  the  court 
probably  will  not  grant  the  prayer  of  the  petition.2 

Where  the  title  is  derived  under  a  deed,  it  is  the  practice  to 
add  only  a  copy  of  the  material  portions  and  omit  the  usual 
formal  clauses. 

Description  of  the  Premises. 

The  petition  should  always  contain  a  description  of  the  property 
as  to  which  the  jurisdiction  of  the  court  is  invoked.  This  descrip- 
tion should  always  be  set  out  in  a  separate  paragraph  and  follow 
the  usual  form  appropriate  in  such  cases.  The  description  need 
not  be  repeated  in  the  decree.  It  is  sufficient  if  the  decree  merely 
refers  to  the  premises  described  in  the  foregoing  petition,  or  if  de- 
sired, the  premises  can  be  referred  to  by  street  number  or  by  loca- 
tion on  the  street  as  a  precaution  to  connect  the  decree  and  peti- 
tion. Where  there  is  no  description  in  the  petition,  it  seems  that 
the  defect  is  cured  by  the  riling  of  a  paper  containing  the  descrip- 
tion, and  by  which  paper  all  parties  join  in  the  prayer  of  the 
petition.3 

This,  however,  is  a  very  careless  method  of  proceeding  and 
should  not  be  encouraged. 

Jurisdictional  Averments. 

The  act  expressly  provides  that  the  court  shall  make  the  decree 
if  of  opinion  that  it  will  be  "for  the  interest  and  advantage  of 
those  interested  and  that  it  may  be  done  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 
and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation."  The  petition 
should  follow  exactly  the  wording  of  the  statute,  and  aver  that 
it  is  for  the  interest  and  advantage,  etc.  The  importance  of  this 
is  that  it  clearly  fixes  the  case  as  being  disposed  of  under  the  pro- 

(1)  As  to  the  necessity  of  setting  out  title,  see  Goldsmith's  Est.,   13 
Phila.  389  (1890),  s.  c.  37  L.  I.  465;   Johnson's  App.,  114  Pa.  132  (1886), 
s.  c.  18  W.  N.  C.  205,  43  L.  I.  426,  3  Lane.  Law  Rev.  376. 

(2)  Heffner's  App.,  119  Pa.  462  (1888),  s.  c.  21  W.  N.  C.  249. 

(3)  Heffner's  App.,  119  Pa.  462  (1888),  s.  c.  21  W.  N.  C.  249;   West  v. 
Cochran,  104  Pa.  482  (1884),  sub  nom.  West  v.  Cochran,  41  L.  I.  330,  s.  c. 
e3i  Pitts.  L.  J.  373- 


FORMS  OF  PETITION  AND  DECREE.  237 

visions  of  the  Price  Act,  thus  excluding  any  possibility  of  the 
court  referring  the  case  to  any  other  act.  Since  the  act  expressly 
provides  that  these  facts  shall  appear  before  the  decree  is  made, 
it  really  seems  necessary  to  the  validity  of  the  proceedings  that 
these  averments  should  appear  in  the  petition. 

In  Brock  v.  Steel  Co.,4  where  a  bill  in  equity  was  filed  in  the 
common  pleas  for  specific  performance  of  an  orphans'  court  sale 
under  the  Price  Act,  which  had  been  duly  confirmed,  the  Supreme 
Court  held  that  the  purchaser  could  not  object  because  these  juris- 
dictional  averments  were  omitted  from  the  petition,  that  if  it  suffi- 
ciently appeared  from  the  facts  of  the  case  that  the  case  would 
come  within  these  averments,  it  was  not  necessary  to  set  them  out 
exactly  in  the  words  of  the  statute.  It  must  be  remembered,  how- 
ever that  this  case  arose  after  the  sale  had  been  confirmed.  Of 
course,  if  the  purchaser  objects  to  the  confirmation  because  of  the 
fact  that  these  averments  are  not  in  the  petition,  there  seems  to  be 
no  escape  from  the  conclusion  that  exceptions  should  be  sustained 
until  the  proceedings  have  been  accordingly  amended.  It  is  un- 
doubtedly better  practice  to  insert  them  in  the  petition.  They 
should  also  be  inserted  in  the  decree.  They  are  of  such  import- 
ance that  there  should  be  no  doubt  in  the  matter. 

Reasons  for  the  Sale,  etc. 

The  reasons  for  the  sale  should  be  clearly  set  out  by  giving  spe- 
cifically facts  concerning  the  property,  or  the  title  as  that  it  is 
dilapidated,  the  revenue  falling  off,  subject  to  encumbrances 
which  are  overdue,  or  something  of  that  kind  which  will  be  a  fact 
why  the  sale  will  be  to  the  interest  and  advantage  of  those  inter- 
ested. The  averment  of  these  reasons  is  of  the  utmost  import- 
ance, and  in  many  cases  petitions  omit  any  averment  of  these 
facts.5 

Where  the  petition  sets  forth  one  ground  of  sale  which,  under 
the  facts  as  they  appear,  is  erroneous,  the  court  will  nevertheless 
confirm  the  sale  on  other  grounds,  if  any.6 

The  Form  of  the  Petition. 
In  Heffner's  App.,7  the  sale  was  refused  on  the  grounds  of  the 

(4)  203  Pa.  249  (1902). 

(5)  For  some  of  the  cases  commenting  on  the  necessity  of  setting  out 
the  facts,  see  Orwig's  Est,  7  Pa.  C.  C.  71   (1889),  46  L.  I.  09,  19  Phila. 
158;  Lambrecht's  Est.,  22  W.  N.  C.  24  (1888).    See  §  29,  ante. 

(6)  Fell's  Est.,  14  Phila.  248  (1880),  9  W.  N.  C.  382,  38  I,.  I.  6. 

(7)  119  Pa.  462  (1888),  21  W.  N.  C.  249. 


238  FORMS  OF  PETITION  AND 

inadequacy  of  the  petition  in  that  ( i )  it  did  not  contain  a  descrip- 
tion of  the  property,  (2)  did  not  set  out  that  the  petitioner  had 
any  interest,  (3)  description  of  the  property  contained  in  a  sepa- 
rate paper  concurring  in  the  application  will  not  cure  want  of 
averment  of  interest  in  the  petitioner,  (4)  no  copy  of  will  at- 
tached. 

"It  (the  petition)  is  defective  in  these  respects: 

"  ( i )   It  does  not  have  a  copy  of  the  will  annexed ; 

"(2)  It  need  not  describe  all  the  real  estate.  That  applies  to  a 
petition  for  a  public  sale  to  pay  debts.  Only  the  real  estate  pro- 
posed to  be  sold  should  be  described. 

"(3)  There  should  be  a  separate  petition  for  each  property 
proposed  to  be  sold.  They  should  not  be  combined  in  one  petition. 
Each  petition  stands  alone,  and  if  granted  is  in  the  line  of  title  to 
the  individual  purchaser.  This  applies  only  where  the  purchasers 
are  different,  as  in  this  case;  of  course,  if  the  person  buys  two 
properties,  or  all,  it  is  proper  to  have  one  petition. 

"(4)  The  petition  should  state  there  are  debts  not  of  record, 
and  annex  a  list  of  them,  if  known,  but  should  not  state  as  here, 
'that  the  personal  estate  is  insufficient  to  pay  them.'  Nor  should 
any  copy  of  inventory  be  annexed,  nor  list  of  debts,  excepts  those 
not  of  record,  as  referred  to  in  the  petition. 

"(5)  A  petition  under  the  Act  of  1853  should  be  carefully 
drawn.  (Appeal  of  Heffner  et.  al.,  21  Weekly  Notes,  249,  119 
Pa.  462.)  And  this  petition  does  not  give  any  reason  for  the  sale 
of  either  of  the  properties,  nor  why  it  will  be  for  the  interest  and 
advantage  of  the  parties  interested  that  they  should  be  sold.  Nor 
do  the  affidavits  give  any  reason  for  the  sale ;  nor  do  the  affiants 
say  that  the  sale  will  be  advantageous  to  the  parties  interested. 
The  price  offered  may  be  a  full  price,  but  why  the  real  estate 
should  be  sold  at  all  is  not  given.  If  the  sales  are  really  to  pay 
debts  why  should  not  the  properties  be  sold  at  public  sale? 

"The  petition  as  prepared  cannot  be  granted  in  accordance  with 
the  Acts  of  Assembly  and  well  settled  practice."8 

"The  prayer  of  the  petition  should  conclude  that  the  purchaser 
may  take  a  title  in  fee  simple,  indefeasible  by  any  person  or  per- 
sons having  a  present  or  expectant  interest  in  the  premises ;  and 
that  the  purchase-moneys  shall,  in  all  respects,  be  substituted 
therefor,  and  be  applied  to  the  uses  of  the  same  persons,  for  the 

(8)  Hanna,  P.  J.,  in  Lambrecht's  Est.,  22  W.  N.  C.  24 


FORMS  OF  PETITION  AND  DECREE.  239 

same  estate  and  interest,  as  the  real  estate  sold  had  been  held,  ex- 
cept that  tenant  in  tail  should  take  the  price  after  discharging 
Hens.  This  prayer  should  be  made  to  guard  against  any  inference 
that  the  proceeds  are  to  become  absolute  in  the  hands  of  the  par- 
ticular tenant,  as  upon  the  destruction  of  a  contingent  remainder 
by  common  recovery,  the  fee  enures  to  him  unless  a  deed  to  lead 
the  uses  of  the  recovery  express  another  purpose.  This  will  also 
remove  all  apprehension  from  the  beneficiaries  that  the  purchase- 
moneys  will  be  diverted  from  subserving  the  same  limitations  that 
had  before  bound  the  realty  sold ;  and  will  assure  them  that  the 
security  required  to  be  entered  shall  stand  for  their  benefit  and 
security,  and  that  the  purchase-moneys  be  paid  to  them  as  re- 
quired by  the  limitations."9 

Forms  of  Petitions  and  Decrees. 

A  number  of  forms  have  been  prepared  covering  the  different 
cases  which  may  arise.  The  auxiliary  forms,  such  as  joinder  in 
the  petition,  order  of  sale,  return  to  order  of  sale,  affidavits  of 
appraisers  when  required  by  local  rule  of  court,  etc.,  may  be  found 
in  any  form  book  devoted  to  orphans'  court  proceedings,  and  are 
therefore  omitted,  as  no  question  of  title  or  jurisdiction  depends 
on  the  wording  of  any  of  them.  It  is  only  proposed  to  add  forms 
of  the  petition  and  decree,  all  of  which  forms  contemplate  the 
case  of  the  confirmation  of  a  sale  already  made,  which  is  the  most 
direct  and  perhaps  the  most  usual  way  of  proceeding  under  the 
act.  Where  it  is  desired  to  have  the  court  order  the  sale  in  ad- 
vance, it  is  only  necessary  to  alter  the  prayer  of  the  petition  so  as 
to  ask  for  a  decree  ordering  a  sale  and  to  omit  the  averment  in  the 
petition  of  the  sale  already  made.  The  other  averments  in  the  pe- 
tition will  remain  the  same. 


Private  Sale  of  Interest  of  a  Minor  in  the  Entire  Premises. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF  - 
Term,  19  —  .     No.  -  . 


ESTATE  OF  THOMAS  BROWN,  A  MINOR. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  guardian  of  Thomas  Brown, 
(9)   Price  on  the  Act  for  the  Sale  of  Real  Estate,  (1874),  p.  100. 


240  FORMS  OF  PETITION  AND 

owner  in  fee  of  the  hereinafter  described  premises,  respectfully 
represents  :10 

(1)  (a)  That  on  the  i3th  day  of  December,  A.  D.  1913,  your 
petitioner  was  duly  appointed  guardian  by  your  Honorable  Court 
of  the  estate  of  the  said  Thomas  Brown ;  or 

(b)"That  on  the  I3th  day  of  December,  A.  D.  1913,  your 
petitioner  was  duly  appointed  guardian  of  the  estate  of  the  said 

Thomas  Brown  by  the  Orphans'  Court  of County,  as  of 

• Term,  No. . 

(2)  That  Daniel  Brown  being  seized  in  fee  of  the  premises 

hereinafter  described,  departed  this  life  on  the  day  of 

A.  D. ,  intestate  and  unmarried,  leaving  to  survive 

him  issue,  the  said  Thomas  Brown,  and  no  other  child  or  issue  of 
a  deceased  child. 

(3)  That  the  said  premises  are  described  as  follows:     (Here 
insert  description  of  premises). 

(4)  That  your  petitioner  has  contracted  to  sell  the  said  prem- 
ises to  Thomas  L.  Kane  for  the  price  of  $5,000,  by  an  agreement 
of  sale,  copy  of  which  is  hereunto  annexed  marked  "Exhibit  A." 

(5)  That  the  said  sum  of  $5,000  is  a  better  price  than  can  be 
obtained  for  the  premises  at  public  sale,  and  that  it  will  be  to  the 
interest  and  advantage  of  the  said  Thomas  Brown  to  sell  the 
premises  for  the  price  specified,  because  the  improvements  on  the 
premises  are  old  and  dilapidated  and  rapidly  deteriorating  in 
value,  and  will  require  an  expenditure  of  a  large  sum  of  money  to 
put  them  in  tenantable  order  fitting  the  neighborhood  in  which  the 
lot  is  situate,  as  that  neighborhood  has  changed  from  a  residence 
to  a  business  neighborhood,  and  the  rents  of  the  property  have 
consequently  declined  and  your  petitioner  can,  by  investing  the 
said  sum  of  $5,000  at  the  prevailing  rates  of  interest,  obtain  a 
larger  return  than  by  renting  the  property  at  the  rent  it  will  com- 
mand in. its  present  dilapidated  condition,  as  the  gross  income  from 

(10)  It  is  desirable  in  the  opening  of  the  petition  to  set  out  the  interest 
of  the  petitioner  precisely.     This  is  a  necessary  jurisdictional  averment, 
and  should  be  brought  to  the  attention  of  the  court  in  the  beginning.     If 
the  interest  is  other  than  an  interest  in  fee,  the  averment  may  be  changed 
as   follows :     "Thomas   Brown,  owner  of  a   vested   remainder  interest," 
"Thomas  Brown,  tenant  for  life,"  etc.,  etc. 

(11)  (b)   Should  be  used  where  the  guardian  is  appointed  in  another 
county.    In  such  case  it  is  not  necessary  to  apply  first  to  the  court  of  the 
county  of  appointment. 


FORMS  OF  PETITION  AND  DECREE.  241 

the  property  for  the  years and  was  $ and 

$ ,  respectively,  and  that  the  repairs  and  taxes,  etc.,  to  the 

property  for  the  years  and  were  $ and 

$ ,  respectively.     The  net  income,  therefore,  for  the  years 

and was  $ and  $ — ,  respectively.12 

(6)  That  such  sale  may  be  made  without  injury  or  prejudice 
to  any  trust,  charity  or  purpose  for  which  the  said  premises  are 
held,  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation. 

(7)  That  the  said  premises  are  assessed  for  taxation  for  the 

year at  $ ,  as  appears  by  certificate  of  the  Board  of 

Revision  of  Taxes  hereunto  annexed  marked  "Exhibit  B."13 

Your  petitioner  therefore  prays  your  Honorable  Court,  under 
the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  503,"  for  a  de- 
cree confirming  the  said  sale  and  authorizing  him  to  convey  the 
said  premises  to  the  said  Thomas  L.  Kane  in  fee  simple,  so  that 
the  title  of  the  purchaser  shall  be  indefeasible  by  any  party  or 
persons  having  a  present  or  expectant  interest  in  the  premises,  and 
be  unprejudiced  by  any  error  in  the  proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the ,  19 — ,  on  consideration  of  the  forego- 
ing petition  and  affidavits  thereunto  annexed,  and  on  motion  of 

(12)  It  is  extremely  important  in  the  case  of  the  sale  of  the  property 
of  a  minor,  where  the  minor  is  the  only  party  interested,  to  give  full  in- 
formation as  to  the  value  of  the  property  and  the  income,  so  that  the  court 
may  judge  whether  it  is  to  the  interest  of  the  minor  to  sell.    These  con- 
siderations also  apply  to  the  case  of  a  lunatic,  habitual  drunkard  or  any 
person  under  disability,  but  do  not  have  the  same  force  in  the  case  where 
the  party  under  disability  has  an  undivided  interest,  and  the  other  owners 
are  sui  juris.    In  that  case  their  consent  to  the  sale  is  very  strong  evidence 
of  its  propriety. 

(13)  This  averment  need  only  be  inserted  in  jurisdictions  where  re- 
quired by  rule  of  court.    Affidavits  of  experts  should  also  be  added  when 
required  by  rule  of  court. 

(14)  Every  petition  should  set  out  the  act  under  which  the  petition  is 
presented,  so  that  there  shall  be  no  doubt  whatever  as  to  what  jurisdiction 
is  invoked  in  the  case.    This  is  frequently  overlooked,  counsel  sometimes 
thinking  that  the  court  has  power  in  equity  to  enter  a  decree  irrespective 
of  the  terms  of  any  statute.    This  does  not  appear  to  be  the  case,  and  since 
the  jurisdiction  must  be  pinned  to  some  statute,  it  is  helpful  to  the  court 
and  to  counsel  to  always  specify  the  statute  in  the  petition. 


242  FORMS  OF  PETITION  AND 

Daniel  Webster,  Esq.,  counsel  for  the  petitioner,  it  appearing  that 
it  will  be  to  the  interest  and  advantage  of  the  said  Thomas  Brown 
that  the  premises  described  in  the  petition  should  be  sold  to 
Thomas  L.  Kane  at  private  sale  for  the  sum  of  $5,000,  and  that 
the  said  price  is  better  than  can  be  obtained  at  public  sale,  and 
that  the  same  may  be  done  without  injury  or  prejudice  to  any 
trust,  charity  or  purpose  for  which  the  same  is  held,  and  without 
the  violation  of  any  law  which  may  confer  an  immunity  or  exemp- 
tion from  sale  or  alienation,  IT  IS  ORDERED  AND  DECREED 
that  the  said  sale  be  confirmed,  that  the  said  William  Burns, 
guardian  of  the  said  Thomas  Brown,  be  and  he  is  hereby  author- 
ized and  empowered  to  convey  the  said  premises  ,  to 

Thomas  L.  Kane  for  the  price  of  $5,000,  the  title  of  the  purchaser 
to  be  a  fee  simple  title  indefeasible  by  any  party  or  persons  having 
a  present  or  expectant  interest  in  the  said  premises  and  unpreju- 
diced by  any  error  in  the  proceedings  of  the  court ;  the  said  Wil- 
liam Burns  first  entering  security  in  the  sum  of  $10,000. 


Private  Sale  of  Undivided  Interest  of  a  Minor. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 

Term,  19 — .     No. . 


ESTATE  OF  THOMAS  BROWN,  A  MINOR. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  guardian  of  Thomas  Brown,  a 
minor,  owner  of  an  undivided  interest15  in  the  premises  herein- 
after described,  respectfully  represents : 

(1)  That  on  the  i3th  day  of  December,  A.  D.  1913,  your  peti- 
tioner was  duly  appointed  guardian  by  your  Honorable  Court  of 
the  estate  of  the  said  Thomas  Brown. 

(2)  That  the  Daniel  Brown  being  seized  in  fee  of  the  premises 

hereinafter  described,  departed  this  life  on —  the  day , 

intestate  and  unmarried,  leaving  to  survive  him  as  issue,  Thomas 
Brown,  George  Brown,  William  Brown,  Susan,  intermarried  with 
Lewis  Rice,  and  Polly,  intermarried  with  James  Smith,  and  no 
other  child  or  issue  of  a  deceased  child. 

(15)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  243 

(3)  That  the  said  Daniel  Brown  was  seized  in  fee  at  the  time 
of  his  death  of  ALL  THAT  CERTAIN  (here  insert  description 
of  premises). 

(4)  That  your  petitioner  is  therefore  the  owner  of  an  undivided 
one-fifth  interest  in  the  said  premises. 

(5)  That  the  parties  now  interested  therein  are  as  set  out  in 
the  following  table,  with  the  amount  of  their  respective  shares : 

Thomas  Brown,  one-fifth. 
George  Brown,  one-fifth. 
William  Brown,  one-fifth. 
Susan  Rice,  one-fifth. 
Polly  Smith,  one-fifth.16 

(6)  That  your  petitioner  and  all  of  the  other  owners  in  fee  of 
the  said  premises  have  contracted  to  sell  the  same  to  Thomas  L. 
Kane  for  the  price  of  $5,000  for  the  whole,  by  agreement  of  sale 
copy  of  which  is  hereunto  annexed  marked  "Exhibit  A." 

(7)  That  all  of  the  said  owners  who  are  sui  juris  have  signified 
their  willingness  to  join  in  the  said  sale  by  joining  in  this  petition. 

(8)  That  it  would  be  to  the  interest  and  advantage  of  the  said 
Thomas  Brown  to  sell  the  premises  for  the  terms  in  said  agree- 
ment of  sale  set  forth,  because  the  price  is  better  than  could  be 
obtained  at  public  sale,  and  because  otherwise  it  would  be  neces- 
sary to  have  partition  proceedings  to  separate  the  ownership  of 
the  various  persons  interested,  and  by  making  the  sale  to  the  said 
Thomas  L.  Kane,  the  expense  and  delay  of  partition  proceedings 
can  be  avoided.     That  it  is  not  likely  that  the  property  will  in- 
crease in  value  within  the  time  necessary  for  the  completion  of 
partition  proceedings.     That  the  sale  may  be  made  without  in- 
jury or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held,  and  without  the  violation  of  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation. 

(9)  That  the  said  premises  are  assessed  for  taxation  for  the 

year — at  the  sum  of  $ ,  as  appears  by  certificate  of  the 

Board  of  Revision  of  Taxes  hereunto  annexed  marked  "Exhibit 


(16)  It  is  always  important,  where  the  interest  is  undivided,  to  set  out 
in  the  petition  in  tabular  form  all  the  undivided  interests  with  the  frac- 
tional amounts  thereof.    This  enables  the  court  at  a  glance  to  see  the  pro- 
portional interest  of  the  minor  or  the  person  making  the  petition. 

(17)  This  averment  need  only  be  inserted  in  cases  where  the  certificate 
is  required  by  local  rule  of  court. 


244  FORMS  OF  PETITION  AND  DECREE. 

Your  petitioner  therefore  prays  your  Honorable  Court,  under 
the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  5O3,18  for  a  de- 
cree confirming  said  sale,  and  authorizing  him  to  join  in  the  con- 
veyance of  the  premises  to  the  said  Thomas  L.  Kane  for  $5,000, 
upon  receipt  of  the  proportional  share  of  the  said  Thomas  Brown 
in  the  purchase-money  so  that  the  title  of  the  purchaser  shall  be 
indefeasible  by  any  party  or  persons  having  a  present  or  expect- 
ant interest  in  the  premises,  and  be  unprejudiced  by  any  error  in 
the  proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the  -  day  of  -  ,  19  —  ,  on  consideration 
of  the  foregoing  petition  and  affidavits  thereto  annexed,  and  on 
motion  of  Joseph  Story,  Esq.,  counsel  for  the  petitioner,  it  appear- 
ing that  it  will  be  to  the  interest  and  advantage  of  said  Thomas 
Brown  that  the  premises  described  in  the  foregoing  petition,  to 
wit,  -  ,  should  be  sold  to  the  said  Thomas  L.  Kane  for 
$5,000  ;  that  the  said  sum  of  $5,000  is  a  better  price  than  could  be 
obtained  for  the  premises  at  public  sale,  and  that  the  same  may  be 
done  without  injury  or  prejudice  to  any  trust,  charity  or  purpose 
for  which  the  same  is  held,  and  without  the  violation  of  any  law 
which  may  confer  immunity  or  exemption  from  sale  or  alienation, 
IT  IS  ORDERED  AND  DECREED  that  the  said  sale  be  con- 
firmed, that  the  said  William  Burns,  guardian  of  the  said  Thomas 
Brown,  be  and  he  is  hereby  authorized  and  empowered  to  join 
with  the  other  parties  in  interest  in  the  conveyance  of  the  said 
premises  to  the  said  Thomas  L.  Kane  for  the  price  of  $5,000  for 
the  whole,  first  receiving  the  proportional  share  of  the  said  minor 
in  the  said  purchase-money,  the  title  of  the  purchaser  to  be  a  fee 
simple  title  indefeasible  by  any  party  or  persons  having  a  present 
or  expectant  interest  in  the  said  premises,  and  unprejudiced  by 
any  error  in  the  proceedings  of  the  court;  the  said  William  Burns 
first  entering  security  in  the  sum  of  $2,ooo.19 


(18)  See  note  14,  ante. 

(19)  The  minor  having  only  a  proportional  share  of  the  purchase-money, 
security  need  only  cover  the  amount  of  that  share. 


FORMS  of  PETITION  AND  DECREE.  245 

Private  Sale.    Property  Subject  to  Lien  of  Debts  Not  of  Record. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF . 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  Sarah  Brown,  widow  of  Daniel  Brown,  and  the 
tenant  of  a  one-third  interest  for  life20  in  premises  hereinafter 
described,  respectfully  represents : 

(1)  That  the  said  Daniel  Brown  died  on  the  i5th  day  of  Janu- 
ary, A.  D.  1914,  intestate,  leaving  to  survive  him  a  widow,  your 
petitioner,  and  issue  five  children,  Thomas  Brown,  Henry  Brown, 
James  Brown,  Susan,  intermarried  with  Charles  Davis,  and  Polly, 
intermarried  with  Lewis  Rice,  to  and  in  whom  the  said  premises 
did  descend  and  vest  under  and  by  virtue  of  the  intestate  laws  of 
the  Commonwealth  of  Pennsylvania. 

(2)  That  the  said  Daniel  Brown  died  seized  in  fee,  inter  alia, 
of  ALL  THAT  CERTAIN  (here  describe  premises). 

(3)  That  your  petitioner  and  the  children  of  the  said  Daniel 
Brown  have  entered  into  an  agreement  of  sale  with  John  Clark, 
in  which  they  have  agreed  to  convey  the  said  premises  for  the  sum 
of  $20,000  by  an  agreement  of  sale,  copy  of  which  is  hereunto  an- 
nexed and  marked  "Exhibit  A." 

(4)  That  by  reason  of  the  death  of  the  said  Daniel  Brown 
within  two  years,  the  premises  are  subject  to  the  lien  of  his  debts 
not  of  record. 

(5)  That  the  said  Thomas,  Henry,  and  James  Brown,  Susan 
Davis  and  Polly  Rice,  and  the  husbands  of  the  said  Susan  and 
Polly,  have  expressed  their  willingness  that  the  said  premises 
should  be  sold  for  the  price  aforesaid,  and  have  joined  in  this 
petition. 

(6)  That  it  will  be  to  the  interest  and  advantage  of  your  peti- 
tioner and  the  children  of  the  said  Daniel  Brown  that  the  said 
premises  shall  be  sold,  for  the  reason  that . 

(7)  That  the  said  sum  of  $20,000  is  a  better  price  than  could 
be  obtained  for  the  premises  at  public  sale. 

(8)  That  the  said  premises  are  assessed  for  taxation  for  the 

(20)  See  note  10,  ante. 


246  FORMS  OF  PETITION  AND  DECREE. 

year  at  the  sum  of  $ ,  as  appears  by  certificate  of  the  Board 

of  Revision  of  Taxes  hereunto  annexed  marked  "Exhibit  — ."21 

(9)  That  the  sale  may  be  consummated  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 
and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court,  under 
the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  503,"  for  a  de- 
cree confirming  said  sale,  and  appointing  John  Jones,  trustee,  to 
carry  out  the  same,  deliver  the  deed  to  the  purchaser,  and  receive 
the  purchase-money,  and  providing  that  the  title  of  the  purchaser 
shall  be  indefeasible  by  any  party  or  persons  having  a  present  or 
expectant  interest  in  the  said  premises,  he  unprejudiced  by  any 
error  in  the  proceedings  in  the  court,  and  free  from  the  lien  of 
debts  not  of  record  of  the  said  Daniel  Brown. 

And  your  petitioner  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the  — « day  of ,  A.  D.  19 — ,  on  consid- 
eration of  the  foregoing  petition  and  the  affidavits  thereunto  an- 
nexed, and  on  motion  of  Edward  Tilghman,  Esq.,  counsel  for  the 
petitioner,  it  appearing  that  it  will  be  to  the  interest  and  advantage 
of  all  parties  interested  in  the  premises  described  in  the  foregoing 
petition,  to  wit  (here  refer  to  premises),  that  the  same  should  be 
sold  to  John  Clark  for  the  sum  of  $20,000 ;  that  the  said  sum  of 
$20,000,  is  a  better  price  than  could  be  obtained  for  the  premises 
at  public  sale,  and  it  further  appearing  that  the  same  may  be  done 
without  injury  or  prejudice  to  any  trust,  charity  or  purpose  for 
which  the  same  is  held  and  without  the  violation  of  any  law  which 
may  confer  an  immunity  or  exemption  from  sale  or  alienation, 
IT  IS  ORDERED  AND  DECREED  that  the  said  sale  be  con- 
firmed, that  John  Jones  be  appointed  trustee  to  carry  out  the 
same,  that  the  said  John  Jones,  trustee  as  aforesaid,  be  and  he  is 
hereby  authorized  and  empowered,  upon  receipt  of  the  purchase- 
money,  to  convey  the  said  premises  to  John  Clark  in  fee  simple, 
the  title  of  the  purchaser  to  be  indefeasible  by  any  party  or  per- 
sons having  a  present  or  expectant  interest  in  the  said  premises, 
and  unprejudiced  by  any  error  in  the  proceedings  of  the  court  and 

(21)  This  averment  need  only  be  inserted  in  case  where  the  certificate 
is  required  by  local  rule  of  court. 

(22)  See  note  14,  ante. 


FORMS  of  PETITION  AND  DECREE.  247 

free  from  the  lien  of  debts  not  of  record  of  the  said  Daniel 
Brown,  deceased,  the  said  John  Jones  first  entering  security  in 
the  sum  of  $40,000. 


Private  Sale  of  Trust  Property.    Time  for  Exercise  of  Power  Expired. 

IN  THE;  COURT  of  COMMON  PLEAS  FOR  THE  COUNTY  OF 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  trustee  under  deed  of  Daniel 
Brown,  and  interested  as  such22a  in  the  premises  hereinafter  de- 
scribed, respectfully  represents : 

(1)  That  Daniel  Brown,  by  deed  dated  the  I5th  day  of  Janu- 
ary, 1898,  conveyed  the  premises  hereinafter  described  to  your 
petitioner,  William  Burns,  in  trust,  to  collect  the  income  thereof 
and  pay  over  the  same  to  Mary,  the  daughter  of  the  said  Daniel 
Brown,  for  her  life,  with  remainder  over  after  her  death  as  therein 
limited,  a  copy  of  which  deed  is  hereunto  annexed  marked  Ex- 
hibit A." 

(2)  That  the  said  premises  are  described  as  follows  (here  in- 
sert description  of  premises). 

(3)  That  the  said  Mary  is  still  alive,  and  that  there  is  a  power 
of  sale  in  the  said  deed  of  trust  which  cannot  now  be  exercised 
because  by  the  terms  of  the  said  deed  it  is  provided  that  the  power 
shall  be  exercised  within  five  years  after  the  date  thereof. 

(4)  That  your  petitioner  has  contracted  to  sell  said  premises 
at  private  sale  to  John  Clark  for  the  sum  of  $10,000  by  agreement 
of  sale,  copy  of  which  is  hereunto  annexed  "Exhibit  B." 

(5)  That  he  is  unable  to  make  title  because  the  power  of  sale 
cannot  now  be  exercised,  and  he  therefore  petitions  the  court,  un- 
der the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  5O3,22a  for 
a  decree  confirming  said  sale,  and  authorizing  the  exercise  qf  the 
power  notwithstanding  the  circumstance  that  the  time  limit  for 
its  exercise  has  expired. 

(6)  That  the  said  sum  of  $10,000  is  a  better  price  than  the  said 

(22a)  See  note  10,  ante. 


248  FORMS  OF  PETITION  AND  DECREE. 

premises  would  bring  at  public  sale,  and  it  is  to  the  interest  and 
advantage  of  the  said  trust  estate  and  of  the  said  Mary  Brown 
that  the  same  shall  be  sold  for  that  price  for  the  reason  that  (here 
insert  reasons). 

(7)  That  the  said  Mary  Brown  has  signified  her  consent  to 
the  sale  by  joining  herein.23 

(8)  That  the  said  premises  are  assessed  for  taxation  for  the 

year ,  for  the  sum  of  $ ,  as  appears  by  the  certificate 

of  the  Board  of  Revision  of  Taxes  hereunto  annexed  marked 
"Exhibit  C."2* 

(9)  That  the  sale  may  be  made  without  injury  or  prejudice 
to  any  trust,  charity  or  purpose  for  which  the  same  is  held,  and 
without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  ratifying  and  confirming  the  said  private  sale,  and  author- 
izing your  petitioner  to  exercise  the  said  power  of  sale  and  convey 
the  premises  in  pursuance  of  the  terms  of  the  said  agreement  of 
sale ;  the  title  of  the  said  purchaser  to  be  indefeasible  by  any 
party  or  persons  having  a  present  or  expectant  interest  in  the  said 
premises,  to  be  in  fee  simple  and  unprejudiced  by  any  error  in  the 
proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the  • on  consideration  of  the  fore- 
going petition  and  affidavits  thereunto  annexed,  and  it  appearing 
that  Mary  Brown,  sole  cestui  que  trust,  has  joined  therein,  and  on 
motion  of  John  Marshall,  Esq.,  counsel  for  the  petitioner,  it  ap- 
pearing that  it  will  be  to  the  interest  and  advantage  of  the  parties 
interested  in  the  premises  described  in  the  foregoing  petition,  to 
wit  (here  refer  to  premises)  that  the  same  should  be  sold  to  John 
Clark  for  the  sum  of  $10,000,  and  that  the  said  price  of  $10,000 
is  a  better  price  that  the  same  would  bring  at  public  sale,  and  it 

(23)  In  the  case  of  trusts,  there  is  some  doubt  as  to  how  far  it  is  nec- 
essary to  notify  all  equitable  interests  in  remainder.    The  petition  as  drawn 
only  provides  for  notice  to  the  life  cestui  que  trust,  which  is  probably 
enough.    It  may  be,  however,  that  circumstances  or  the  court  will  require 
notice  to  all  parties.     See  §  138,  ante. 

(24)  This  averment  need  only  be  inserted  when  required  by  local  rule 
of  court. 


FORMS  OF  PETITION  AND  DECREE.  249 

further  appearing  that  the  same  may  be  done  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation,  IT  IS  ORDERED 
AND  DECREED  that  the  said  sale  be  confirmed,  and  that  Wil- 
liam Burns,  trustee  under  the  deed  of  Daniel  Brown,  is  authorized 
to  exercise  the  power  of  sale  conferred  by  the  terms  of  said  deed 
notwithstanding1  the  circumstance  that  the  time  limit  for  its  exer- 
cise has  expired,  and  in  pursuance  thereof  to  convey  the  premises 
to  John  Clark  for  the  sum  of  $10,000,  the  title  of  the  purchaser 
to  be  in  fee  simple,  indefeasible  by  any  party  or  persons  having 
a  present  or  expectant  interest  in  the  said  premises,  and  unpreju- 
diced by  any  error  in  the  proceedings  of  the  court,  the  said  Wil- 
liam Burns  first  entering  security  in  the  sum  of  $20,000. 


(Petition  to  Join  With  Other  Undivided  Interests  to  Change  Location  of 
Right  of  Way  Existing  Over  Adjoining  Lands.) 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF . 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  trustee  under  the  will  of  Daniel 
Brown,  deceased,  and  as  such  the  owner  in'  fee  of25  an  undivided 
one-fifth  interest  in  the  premises  hereinafter  described,  repre- 
sents : 

(i)  That  Daniel  Brown  died  on  the  i5th  day  of  January,  A. 
D.  1905,  unmarried  and  leaving  to  survive  him  five  children, 
Thomas,  George,  James,  Sallie,  intermarried  with  Lewis  Rice,  and 
Polly,  intermarried  with  James  Smith,  and  having  first  made  and 
published  his  last  will  and  testament  in  writing,  a  true  copy 
whereof  is  hereunto  annexed  marked  "Exhibit  A.,"  wherein  and 
whereby  he  divided  his  residuary  estate,  including  the  premises 
hereinafter  described,  into  five  parts,  one  part  to  go  to  his  son 
Thomas,  one  part  to  his  son  George,  one  part  to  his  son  James, 
one  part  to  his  daughter  Sallie,  and  the  other  part  to  your  peti- 
tioner in  trust  for  his  daughter  Polly. 

(25)  See  note  10,  ante. 
17 


250  FORMS  OF  PETITION  AND 

(2)  That  the  said  premises  are  described  as  follows :  (here  in- 
sert description  of  premises). 

(3)  That  the  persons  interested  in  the  said  premises  are  there- 
fore as  shown  in  the  following  table,  with  the  amount  of  their 
respective  interests : 

Thomas  Brown,  one-fifth. 

George  Brown,  one-fifth. 

James  Brown,  one-fifth. 

Sallie  Rice,  one-fifth. 

William  Burns,  trustee  for.  Polly  Smith,  one-fifth. 

(4)  That  by  reason  of  an  agreement  made  by  the  said  Daniel 
Brown  in  his  lifetime  with  John  Clark,  the  owner  in  fee  of  cer- 
tain premises  adjoining  the  aforesaid  premises  on  the  east,  the 
premises  hereinbefore  described  became  entitled  to  the  use  of  a 
certain  right  of  way  twenty  feet  wide  leading  therefrom  and  on  a 
course  north  42°  73'  west  over  the  lands  of  the  said  John  Clark, 
to  a  certain  road  leading  from  the  brick  tavern  in  Providence 
Township  to  the  Red  Lion  Hotel  in  Upper  Darby  Township. 

(5)  That  the  said  John  Clark  is  desirous  of  having  the  location 
of  the  said  right  of  way  changed  in  order  that  he  may  arrange  for 
a  more  convenient  use  of  his  premises. 

(6)  That  your  petitioner  and  the  other  parties  in  interest  in 
the  said  premises  who  have  signified  their  consent  by  joining 
herein,  have  agreed  with  the  said  John  Clark  that  the  said  right 
of  way  shall  run  on  a  course  south  22°  49'  west  instead  of  on  the 
course  which  it  runs  at  present,  and  that  it  shall  be  of  the  same 
width  of  20'  feet  as  it  is  now. 

(7)  That  the  new  location  of  the  right  of  way  will  give  the  said 
premises  an  outlet  to  the  aforesaid  public  road  sixty  feet  shorter 
than  the  length  of  the  present  right  of  way. 

(8)  That  it  will  be  to  the  interest  and  advantage  of  all  parties 
interested  that  the  location  of  the  said  right  of  way  shall  be 
changed  in  the  manner  aforesaid. 

(9)  That  the  same  may  be  done  without  injury  or  prejudice  to 
any  trust,  charity  or  purpose  for  which  the  same  is  held,  and 
without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court,  under 
the  provisions  of  the  Act  of  April  18,  1864,  P.  L.  462,  Sec.  I,26 

(26}  See  note  14,  ante. 


FORMS  of  PETITION  AND  DECREE.  251 

for  a  decree  authorizing  him  to  join  with  the  other  parties  in  in- 
terest in  a  proper  agreement  with  the  said  John  Clark,  by  which 
the  location  of  the  said  right  of  way  shall  be  changed  in  the  man- 
ner hereinbefore  more  particularly  set  forth. 
And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the  -  on  consideration  of  the 
foregoing  petition,  and  on  motion  of  Jeremiah  Mason,  Esq., 
counsel  for  the  petitioner,  and  it  appearing  that  all  parties  in- 
terested therein  have  joined  in  the  said  petition,  and  it  fur- 
ther appearing  that  it  will  be  to  the  interest  and  advantage  of 
all  of  said  parties  that  the  location  of  the  right  of  way  described 
in  the  foregoing  petition  leading  from  the  barn  on  the  premises 
described  therein  to  the  said  public  road,  shall  be  changed  from 
the  course  upon  which  it  now  runs  to  the  course  designated  in  the 
petition,  and  that  the  change  may  be  made  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held,  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation,  IT  IS  ORDERED 
AND  DECREED  that  William  Burns,  trustee  under  the  will  of 
Daniel  Brown,  deceased,  be  and  he  is  hereby  authorized  to  enter, 
with  the  other  parties  in  interest  in  the  said  premises,  into  a 
proper  deed  with  the  said  John  Clark,  by  which  the  location  of 
the  said  right  of  way  20  feet  wide  leading  from  the  barn  of  the 
said  premises  to  the  said  public  road  shall  be  changed  from  north 
42°  73'  west  to  south  22°  49'  west  the  said  right  of  way  to  be  of 
the  same  width  as  the  present  right  of  way.  The  title  of  the  said 
John  Clark  to  the  ground  now  occupied  by  the  said  right  of  way 
to  be  in  fee  simple,  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  under  the  will  of  Daniel  Brown,  de- 
ceased, and  be  unprejudiced  by  any  error  in  the  proceedings  of 
the  court.27 


(27)  No  security  is  necessary  m  a  case  of  this  kind.  No  cash  passes 
and  the  premises  become  entitled  to  a  new  right  of  way  in  place  of  the 
old  one. 


252  FORMS  OF  PETITION  AND  DECREE. 

(Petition  for  Exchange.) 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF  • 
Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  guardian  of  Thomas  Brown, 
owner  in  fee28  of  the  premises  hereinafter  described,  respectfully 
represents : 

(1)  That  Daniel  Brown  died  on  the  i/th  day  of  December,  A. 
D.  1913,  intestate  and  unmarried,  and  leaving  to  survive  him  a 
son,  the  said  Thomas  Brown,  and  no  other  child  or  issue  of  a  de- 
ceased child. 

(2)  That  your  Honorable  Court  did  on  the  day  of 

,  A.  D. ,  duly  appoint  your  petitioner  guardian  of  the 

said  Thomas  Burns. 

(3)  That  the  said  Daniel  Brown  was  at  the  time  of  his  death 
seized  in  fee  of  all  that  certain  (here  describe  premises). 

(4)  That  the  said  premises  are  bounded  on  the  west  by  an  ir- 
regular line  as  appears  by  a  plan  hereunto  annexed  marked  "Ex- 
hibit A." 

(5)  That  John  Clark  is  the  owner  of  the  premises  adjoining 
on  the  west,  and  the  said  John  Clark  and  your  petitioner  have 
entered  into  an  agreement  to  square  and  adjust  the  line  dividing 
the  said  premises  and  the  premises  of  the  said  John  Clark,  so  that 
the  same  may  run  in  a  straight  line  instead  of  the  irregular  line 
upon  which  it  is  now  laid  out. 

(6)  That  the  change  in  the  location  of  the  line  will  not  diminish 
the  area  of  the  premises  belonging  to  the  said  Thomas  Brown,  it 
appearing  that  the  arrangement  agreed  upon  will  give  the  said 
John  Clark  as  much  of  the  said  Thomas  Brown's  land  as  the  said 
John  Clark  will  give  to  the  said  Thomas  Brown  of  his  land. 

(7)  That  by  plan  hereunto  annexed  marked  "Exhibit  B.,"  it 
will  appear  what  change  in  area  will  be  made  in  the  said  premises 
by  the  relocation  of  the  dividing  line. 

(8)  That  it  will  be  to  the  interest  and  advantage  of  the  said 
Thomas  Brown  that  the  said  change  in  location  should  be  made 
because  the  marketability  of  the  title  will  be  increased  and  the  ex- 

(28)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  253 

pense  of  maintaining  the  dividing  fence  between  the  properties 
will  de  decreased,  the  length  thereof  being  found  by  measurement 
to  be  100  feet  less  than  if  it  were  built  upon  the  line  now  dividing 
the  premises. 

(9)  That  the  said  change  in  location  may  be  made  without  in- 
jury or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held,  and  without  the  violation  of  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  under  the  provisions  of  the  Act  of  April  18,  1853,  P.  L. 
503, 29  authorizing  him  as  guardian  aforesaid  to,  on  behalf  of  the 
said  Thomas  Brown,  enter  into  an  agreement  with  the  said  John 
Clark  for  relocating  the  dividing  line  between  the  premises  of  the 
said  Thomas  Brown  and  the  premises  of  the  said  John  Clark, 
as  shown  on  the  plan  hereunto  annexed  hereinbefore  referred  to 
marked  "Exhibit  B." 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  on  consideration  of  the  foregoing 

petition  and  affidavits  thereunto  annexed,  and  on  motion  of  Jere- 
miah Mason,  Esq.,  counsel  for  the  petitioner,  and  it  appearing 
that  it  will  be  to  the  interest  and  advantage  of  the  said  Thomas 
Brown  that  the  dividing  line  between  the  premises  described  in  the 
petition  and  the  premises  of  the  said  John  Clark  shall  be  changed 
so  as  to  run  upon  the  line  marked  in  the  plan  shown  on  Exhibit 
B.,  and  that  the  said  change  in  location  may  be  made  without  in- 
jury or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held,  and  without  the  violation  of  any  law  which  may  con- 
fer an  immunity  or  exemption  from  sale  or  alienation,  IT  IS 
ORDERED  AND  DECREED  that  the  said  William  Burns, 
guardian  of  Thomas  Brown,  be  and  he  is  hereby  authorized  to 
execute  a  deed  with  the  said  John  Clark,  by  which  deed  it  shall 
be  provided  that  the  dividing  line  between  the  premises  of  the  said 
Thomas  Brown  and  the  premises  of  the  said  John  Clark  shall  run 
upon  a  line  as  follows  :30  (here  insert  the  course  of  the  line),  and 

(29)  See  note  14,  ante. 

(30)  In  a  case  like  this,  where  there  is  no  description  in  the  petition, 
and  where  the  new  line  appears  only  in  the  exhibit,  it  appears  advisable 
that  the  decree  should  specifically  recite  the  course  of  the  new  line. 


254  FORMS  OF  PETITION  AND 

conveying  to  the  said  John  Clark  all  land  of  the  said  Thomas 
Brown  situate  to  the  west  of  the  said  line,  and  conveying  to  the 
said  Thomas  Brown  all  land  of  the  said  John  Clark  situate  to  the 
east  of  the  said  dividing  line,  and  that  the  title  of  the  said  Thomas 
Brown  to  the  land  conveyed  to  him  under  the  deed,  and  the  title 
of  the  said  John  Clark  to  the  land  conveyed  to  him  under  the  said 
deed  shall  each  be  in  fee  simple,  indefeasible  by  any  party  or  per- 
sons having  a  present  or  expectant  interest  therein,  and  be  un- 
prejudiced by  any  error  in  the  proceedings  of  the  court.31 


Contingent  Remainders  to  Children. 

IN  THE  COURT  OF  COMMON  PLEAS  FOR  THE  COUNTY  OF  • 
Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  Thomas  Brown,  tenant  for  life32  of  the  premises 
hereinafter  described,  respectfully  represents : 

(1)  That  Daniel  Brown  by  deed  dated  January  15,  1875,  con- 
veyed  the   premises   hereinafter    described    to   your   petitioner, 
Thomas  Brown,  for  life,  with  remainder  after  his  death  to  such 
of  his  children  as  should  be  then  living,  as  will  appear  by  copy  of 
said  deed  hereunto  annexed  marked  "Exhibit  A." 

(2)  That  the  said  premises  are  described  as  follows:  (here  in- 
sert description  of  the  premises). 

(3)  That  your  petitioner  is  now  the  father  of  three  children,  to 
wit,  Maria,  William  and  Annie,  and  there  is  likelihood  that  the 
class  of  persons  to  whom  the  remainder  over,  as  aforesaid,  is  lim- 
ited will  increase  in  the  future. 

(4)  That  your  petitioner  has  contracted  to  sell  the  said  prem- 
ises at  private  sale  to  John  Clark  for  $10,000,  by  agreement  of 
sale,  copy  whereof  is  hereunto  annexed  marked  "Exhibit  B." 

(5)  That  he  is  unable  to  make  title  because  of  the  contingent 
remainders,  as  aforesaid,  limited  to  his  children,  and  he  therefore 

(31)  No  security  is  necessary  in  this  case. 

(32)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  255 

petitions  the  court,  under  the  provisions  of  the  Act  of  April  18, 
1853,  P.  L.  503,  as  amended  by  the  Act  of  June  14,  1897,  P.  L. 
I44,33  for  a  decree  confirming  said  sale,  and  directing  a  convey- 
ance freed  and  discharged  of  the  said  contingent  remainders. 

(6)  That  the  said  sum  of  $10,000  is  a  full  and  fair  price  for 
the  said  premises  and  more  than  the  same  would  bring  at  public 
sale. 

(7)  That  it  is  to  the  interest  and  advantage  of  all  parties  that 
the  same  should  be  sold  for  that  price  for  the  reason  that  (here  in- 
sert reason). 

(8)  That  the  said  sale  may  be  made  without  injury  or  prejudice 
to  any  trust  or  charity  or  purpose  for  which  the  same  is  held,  and 
without  violation  of  any  law  which  may  confer  an  immunity  or 
exemption  from  sale  or  alienation. 

(9)  That  the  said  premises  are  assessed  for  taxation  for  the 

year at  the  sum  of  $ ,  as  appears  by  certificate  of  the 

Board  of  Revision  of  Taxes  hereunto  annexed  marked  "Exhibit 

"34 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a  de- 
cree ratifying  and  confirming  the  said  private  sale,  and  appointing 
John  Jones,  trustee  to  convey  the  said  premises,  and  free,  clear 
and  discharged  of  the  said  contingent  remainders,  and  to  receive 
the  proceeds  under  such  directions  as  your  Honorable  Court  may 
provide;  and  as  preliminary  thereto,  that  your  Honorable  Court 
appoint  William  Burns  trustee  to  represent  the  said  contingent 
remainders  in  posse,35  the  title  of  the  purchaser  to  be  in  fee  simple, 
indefeasible  by  any  party  or  persons  having  a  present  or  expectant 
interest  in  the  premises,  and  the  purchase-money  to  be  in  all  re- 
spects substituted  for  the  land  sold,  and  to  be  applied  to  the  uses 
of  the  same  persons  for  the  same  estate  and  same  interest  that  it 
is  now  held. 

And  we  will  ever  pray,  etc.35 

The  preliminary  decree  should  read  as  follow :  "AND  NOW, 
the day  of  — i ,  19 — ,  on  consideration  of  the  foregoing 

(33)  See  note  14,  ante. 

(34)  This  averment  need  only  be  inserted  in  cases  where  the  certificate 
is  required  by  local  rule  of  court. 

(35)  In  this  case  it  will  be  necessary  for  the  petition  to  be  presented  to 
the  court,  and  then  for  the  court  to  first  make  a  decree  appointing  a  trus- 
tee, after  which  the  trustee  will  have  to  join  in  the  petition. 


256  FORMS  OP  PETITION  AND 

petition,  and  on  motion  of  Daniel  Webster,  Esq.,  William  Burns 
is  appointed  trustee  to  represent  the  children  of  Daniel  Brown,  de- 
ceased, now  born  or  hereafter  to  be  born,  and  upon  said  appoint- 
ment he  is  directed  to  examine  into  the  foregoing  petition  and 
signify  to  the  court  his  acqueiscence  in  or  objections  to  the  same." 


Final  Decree. 

AND  NOW,  the  -  day  of  -  ,  A.  D.  19  —  ,  on  considera- 
tion of  the  foregoing  petition,  and  it  appearing  that  William  Burns 
who  was  appointed  trustee  to  represent  the  children  of  Daniel 
Brown  deceased,  has  signified  to  the  court  the  fact  that  he  has  re- 
ceived notice  of  the  foregoing  petition,  and  that  he  has  joined 
therein,  and  on  motion  of  Daniel  Webster,  Esq.,  it  appearing  that 
it  will  to  the  interest  and  advantage  of  all  the  parties  that  the  said 
premises  -  should  be  sold  to  John  Clark  for  the  sum 
of  $10,000;  that  the  said  sum  of  $10,000  is  a  better  price  than 
could  be  obtained  for  the  premises  at  public  sale,  and  that  the 
,same  may  be  made  without  injury  or  prejudice  to  any  trust,  char- 
ity or  purpose  for  which  the  same  is  held,  and  without  the  viola- 
tion of  any  law  which  may  confer  an  immunity  or  exemption 
from  sale  or  alienation,  IT  IS  ORDERED  AND  DECREED 
(i)  that  the  said  private  sale  to  John  Clark  be  and  the  same  is 
hereby  confirmed,  (2)  that  John  Jones  is  hereby  appointed  trustee 
to  carry  out  the  said  sale  and  convey  the  premises  to  the  pur- 
chaser, (3)  that  the  said  John  Jones  is  hereby  authorized  and  di- 
rected to  convey  the  said  premises  to  the  said  John  Clark  upon 
the  receipt  of  the  said  $10,000,  the  title  of  the  purchaser  to  be  a 
fee  simple  title,  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  in  the  premises,  and  free,  clear  and 
discharged  of  the  remainders  limited  to  the  children  of  Daniel 
Brown,  dceased,  and  unprejudiced  by  any  error  in  the  proceedings 
of  the  court  ;  the  said  purchase-money  to  be  held  by  the  said  John 
Jones  during  the  life  of  Thomas  Brown,  and  at  his  death  to  be 
paid  to  the  persons  entitled  under  the  said  deed  of  Daniel  Brown  ; 
the  said  John  Jones  first  entering  security  in  the  sum  of  of  $20,000. 


FORMS  OF  PETITION  AND  DECREE.  257 

Contingent  Remainders  to  a  Class  Other  Than  Children. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF . 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  Thomas  Brown,  tenant  for  life36  of  the  premises 
hereinafter  described,  respectfully  represents : 

(1)  That  Daniel  Brown,  who  was  an  uncle  of  your  petitioner, 
died  on  January  15,  1875,  seized  in  fee  of  the  premises  hereinafter 

described,  having  made  a  will  dated  the day  of ,  a 

true  copy  of  which  is  hereto  annexed  marked  "Exhibit  A."  by 
which  he  devised  the  said  premises  to  your  petitioner  for  life,  and 
after  his  death  to  the  children  of  John  Smith,  who  might  then  be 
living.    The  said  premises  are  described  as  follow :     (Here  insert 
description  of  premises). 

(2)  That  your  petitioner  contracted  to  sell  the  said  premises 
to  John  Clark  for  $10,000,  by  agreement  of  sale,  copy  whereof  is 
hereto  annexed  marked  "Exhibit  B."    That  he  is  unable  to  make 
title  because  of  the  contingent  remainders,  as  aforesaid,  children 
of  John  Smith,  and  he  therefore  petitions  the  court,  under  the 
provisions  of  the  Act  of  June  15,  1897,  P.  L,.  I59,ST  for  a  decree 
confirming  the  said  sale  and  directing  a  conveyance  free  and  dis- 
charged of  the  said  contingent  remainders.38 

(3)  That  the  said  sum  of  $10,000  is  a  full  and  fair  price  for 
the  said  premises  and  a  better  price  than  the  same  would  bring  at 
public  sale. 

(4)  That  it  is  to  the  interest  and  advantage  of  all  parties  that 
the  same  should  be  sold  at  that  price  for  the  reason  that  (here  in- 
sert reason). 

(5)  That  the  said  sale  may  be  made  without  injury  or  prejudice 
to  any  trust,  charity  or  purpose  for  which  the  same  is  held,  and 

(36)  See  note  10,  ante. 

(37)  See  note  14,  ante. 

(38)  The  proceedings  must  here  be  in  the  Orphans'  Court  the  limita- 
tions being  other  than  to  children.     If  in  this  case  the  title  had  been  de- 
rived by  deed,  there  is  no  jurisdiction  to  sell  and  discharge  the  contingent 
remainders,  the  Common  Pleas  in  such  case  not  having  jurisdiction  under 
the  Act  of  June  14,  1897,  P.  L.  144.    . 


258  FORMS  OF  PETITION  AND 

without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation. 

(6)  That  the  said  premises  are  assessed  for  taxation  for  the 
year  at  the  sum  of  $  -  ,  as  appears  by  certificate  of  the  Board 
of  Revision  of  Taxes  hereunto  annexed  marked  "Exhibit  —  ,"39 

(7)  Your  petitioner  therefore  prays  your  Honorable  Court  for 
a  decree  ratifying  and  confirming  the  said  private  sale,  and  ap- 
pointing John  Jones,  trustee,40  to  convey  the  said  premises  free, 
clear  and  discharged  of  said  contingent  remainders,  the  title  of 
the  purchaser  to  be  in  fee  simple,  indefeasible  by  any  party  or 
persons  having  a  present  or  expectant  interest  in  the  premises,  and 
the  purchase-money  to  be  in  all  respects  substituted  for  the  land 
sold,  and  to  be  applied  to  the  uses  of  the  same  persons  for  the 
same  estate  and  same  interest  that  it  is  now  held,  and  as  prelimi- 
nary thereto,  that  your  Honorable  Court  appoint  William  Burns, 
trustee,  to  represent  the  said  contingent  remainders  in  posse. 

Preliminary  Decree. 

AND  NOW,  the  -  day  of  -  •  —  ,  19  —  ,  on  consideration 
of  the  foregoing  petition,  and  on  motion  of  William  Mansfield, 
Esq.,  attorney  for  the  petitioner,  William  Burns  is  appointed  trus- 
tee to  represent  the  children  of  John  Smith  who  may  be  living  at 
his  death,  and  upon  said  appointment  he  is  directed  to  examine 
into  the  foregoing  petition  and  signify  to  the  court  his  acqui- 
escence in  or  objections  thereto. 


Final  Decree. 

AND  NOW,  the  -  1  day  of  -  ,  19  —  ,  on  consideration  of 
the  foregoing  petition,  and  it  appearing  that  William  Burns,  who 
was  appointed  trustee  to  represent  the  heirs  of  Thomas  Brown, 
has  signified  to  the  court  the  fact  that  he  has  received  notice  of  the 
foregoing  petition,  and  that  he  has  joined  therein,  and  on  motion 
of  William  Mansfield,  Esq.,  it  appearing  that  it  will  be  to  the  in- 
terest and  advantage  of  all  the  parties  that  the  said  premises, 
-  ,  should  be  sold  to  John  Clark  for  the  sum  of  $10,- 
ooo,  that  the  said  sum  of  $10,000  is  a  better  price  than  could 

(39)  This  averment  need  only  be  inserted  in  cases  where  the  certificate 
is  required  by  local  rule  of  court. 

(40)  The  sale  may  be  made  by  the  life  tenant,  if  desired,  and  in  such 
case  he  will  give  the  bond  and  make  the  deed. 


FORMS  OF  PETITION  AND  DECREE.  259 

be  obtained  for  the  premises  at  public  sale,  and  that  the  same  may 
be  made  without  injury  or  prejudice  to  any  trust,  charity  or  pur- 
pose for  which  the  same  is  held,  and  without  the  violation  of  any 
which  may  confer  an  immunity  or  exemption  from  sale  or  aliena- 
tion, IT  IS  ORDERED  AND  DECREED  (i)  that  the  said  pri- 
vate sale  to  John  Clark  be  and  the  same  is  hereby  confirmed; 
(2)  that  John  Jones  is  hereby  appointed  trustee  to  carry  out  the 
said  sale  and  convey  the  said  premises  (or  that  Thomas  Brown 
is  hereby  authorized,  etc.)  ;  (3)  that  the  said  John  Jones  is  hereby 
authorized  and  directed  to  convey  the  said  premises  to  the  said 
John  Clark  upon  receipt  of  the  said  $10,000,  the  title  of  the  pur- 
chaser to  be  a  fee  simple  title  indefeasible  by  any  party  or  person 
having  a  present  or  expectant  interest  therein,  and  free,  clear  and 
discharged  of  the  remainders  limited  to  the  children  of  John 
Smith,  and  unprejudiced  by  any  error  in  the  proceedings  of  the 
court.  The  purchase-money  to  be  held  by  the  said  John  Jones 
(or  Thomas  Brown,  as  the  case  may  be),  and  paid  to  the  persons 
entitled  under  the  will  of  the  said  Daniel  Brown,  deceased,  the 
said  John  Jones  (or  Thomas  Brown,  as  the  case  may  be),  first 
entering  security  in  the  sum  of  $20,000. 


(Contingent  Remainder  to  an  Ascertained  Person.) 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  Thomas  Brown,  tenant  for  life41  of  the  premises 
hereinafter  described,  respectfully  represents : 

(1)  That  Daniel  Brown  died  on  the  i5th  day  of  January,  A.  D. 
1875,  seized  in  fee  of  the  premises  hereinafter  described,  having 

made  a  will  dated ,  a  true  copy  whereof  is  hereunto 

annexed  marked  "Exhibit  A.,"  by  which  he  devised  the  said  prem- 
ises to  your  petitioner  for  life,  and  upon  his  death  to  his  daughter, 
Sallie,  if  she  should  then  be  living. 

(2)  That  the  said  Sallie  has  since  intermarried  with  Lewis 
Rice. 

(41)  See  note  10,  ante. 


260  FORMS  OF  PETITION  AND  DECREE. 

(3)  The  said  premises  are  described  as  follow:     (Here  insert 
description  of  premises). 

(4)  That  your  petitioner  has  contracted  to  sell  the  said  prem- 
ises to  John  Clark  for  $10,000  by  agreement  of  sale  copy  whereof 
is  hereunto  annexed  marked  "Exhibit  B." 

(5)  That  he  is  unable  to  make  title  because  of  the  contingent 
remainder  so  limited,  as  aforesaid,  to  the  said  Sallie  Rice.     He 
therefore  petitions  the  court,  under  the  provisions  of  the  Act  of 
April  18,  1853,  P.  L.  5O3,42  for  a  decree  confirming  said  sale  and 
directing  the  conveyance  free  and  discharged  of  the  said  con- 
tingent remainder. 

(6)  That  notice  has  been  given  to  the  said  Sallie  Rice,  and  she 
has  signified  her  consent  to  the  said  sale  by  joining  herein. 

(7)  That  the  said  sum  of  $16,000  is  more  than  the  premises 
would  bring  at  public  sale,  and  it  is  to  the  interest  and  advantage 
of  all  parties  that  the  premises  should  be  sold  for  that  price  for 
the  reason  that  the  property  is  subject  to  a  mortgage  which  is 
now  overdue  and  has  been  called  in,  in  consequence  whereof  the 
parties  will  be  under  the  necessity  of  raising  money  to  pay  off  the 
mortgage,  and  they  are  unable  to  agree  upon  a  proper  adjustment 
of  the  burden  of  such  encumbrance  as  between  themselves,  and 
the  property  is  therefore  likely  to  be  sold  by  the  sheriff  under  pro- 
ceedings on  the  mortgage. 

(8)  That  the  said  premises  are  assessed  for  taxation  for  the 

year ,  at  $ ,  as  appears  by  certificate  of  the  Board 

of  Revision  of  Taxes  hereunto  annexed,  marked  "Exhibit  — ,"43 

(9)  That  the  said  sale  may  be  made  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 
and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  confirming  said  sale,  and  authorizing  him  to  carry  out  the 
same  by  conveying  the  premises  to  the  purchaser  in  fee  simple, 
so  that  he  may  have  a  title  indefeasible  by  any  party  or  persons 
having  a  present  or  expectant  interest  in  the  said  premises,  and 
unprejudiced  by  any  error  in  the  proceedings  of  the  court. 

And  the  purchase-money  to  be  in  all  respects  substituted  for  the 

(42)  See  note  14,  ante. 

(43)  This  averment  need  only  be  inserted  by  local  rule  of  court. 


FORMS  OF  PETITION  AND  DECREE.  261 

land  sold,  and  to  be  applied  to  the  uses  of  the  same  persons  for 
the  same  estate  and  same  interest  that  it  is  now  held. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW, ,  on  consideration  of  the  foregoing 

petition,  Sallie  Rice  interested  by  way  of  contingent  remainder 
therein  having  joined  with  her  husband  therein,  and  on  motion  of 
John  B.  Gibson,  Esq.,  counsel  for  the  petitioner,  it  appearing  that 
it  will  be  to  the  interest  and  advantage  of  all  parties  that  the  prem- 
ises described  in  the  foregoing  petition,  to  wit,  < , 

should  be  sold  to  John  Clark  for  the  price  of  $10,000,  the  said 
sum  of  $10,000  being  a  better  price  than  could  be  obtained  at  pub- 
lic sale,  and  that  the  same  may  be  made  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 
and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation,  IT  IS  ORDERED, 
ADJUDGED  AND  DECREED  that  the  said  private  sale  be  con- 
firmed, and  that  Thomas  Brown  be  and  he  is  hereby  authorized 
to  convey  the  same  to  the  said  John  Clark  for  the  price  of  $10,000, 
free,  clear  and  discharged  of  the  contingent  remainder  limited  by 
the  will  of  Daniel  Brown  to  his  daughter,  Sallie  Rice;  the  title 
of  the  purchaser  to  be  in  fee  simple,  indefeasible  by  any  party  or 
persons  having  a  present  or  expectant  interest  in  the  said  prem- 
ises, and  unprejudiced  by  any  error  in  the  proceedings  of  the 
court.  The  said  sum  of  $10,000  to  be  held  by  the  said  Thomas 
Brown  until  his  decease  in  order  that  the  same  may  be  paid  over 
to  the  said  Sallie  Rice,  if  she  be  then  living;  the  said  Thomas 
Brown  first  entering  security  in  the  sum  of  $20,000. 


Executory  Devise. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 
Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  Thomas  Brown,  executory  devisee44  of  the 
premises  hereinafter  described,  respectfully  represents: 

(44)  See  note  10,  ante. 


262  FORMS  OF  PETITION  AND 

(1)  That  the  said  Daniel  Brown  died  on  the  i5th  day  of  Janu- 
ary, A.  D.  1875,  seized  in  fee  of  the  premises  hereinafter  de- 
scribed, having  made  a  will  dated  ,  a  true  copy 

whereof  is  hereunto  annexed  maked  "Exhibit  A.,"  by  which  he 
devised  the  said  premises  to  George  Brown  for  life,  with  a  pro- 
viso that  if  the  said  George  Brown  should  die  without  having 
married,  the  premises  should  be  vested  in  your  petitioner,  and  if 
the  said  George  Brown  should  die  a  married  man,  the  premises 
should  go  to  his  heirs  and  assigns  forever. 

(2)  That  the  said  premises  are  described  as  follows:     (Here 
insert  description  of  premises). 

(3)  That  the  said  George  Brown  is  still  living,  and  your  peti- 
tioner is  desirous  that  the  premises  should  be  sold  for  the  reason 
that 1 . 

(4)  That  your  petitioner  has  contracted  to  sell  the  said  prem- 
ises to  James   Clark   for  $20,000  by  agreement  of   sale,  copy 
whereof  is  hereunto  annexed  marked  "Exhibit  B." 

(5)  That  he  is  unable  to  make  title  to  the  property  because  he 
is  only  interested  as  an  executory  devisee,  and  although  the  said 
George  Brown  is  willing  to  consent  to  the  said  sale  of  the  said 
premises,  as  aforesaid,  and  has  joined  in  this  petition,  yet  your 
petitioner  and  George  Brown  are  unable  to  agree  upon  a  proper 
division  of  the  purchase-money,  and  therefore  your  petitioner 
prays  your  Honorable  Court  for  a  decree  under  the  provisions  of 
the  Act  of  April  18,  1853,  P.  L.  5O3,45  directing  the  sale  of  the 
premises  free  and  clear  of  the  executory  devise,  and  substituting 
the  purchase-money  for  the  land  so  that  if  the  said  George  Brown 
should  die  without  being  married,  your  petitioner  may  be  entitled 
to  the  entire  amount  of  the  said  purchase-money. 

(6)  That  the  said  sum  of  $20,000  is  a  better  price  than  could 
be  obtained  at  public  sale,  and  it  is  to  the  interest  and  advantage 
of  all  parties  that  the  premises  should  be  sold  for  that  price  for 
the  reason  that . 

(7)  That  the  said  premises  are  assessed  for  taxation  for  the 

year  — . at  $ ,  as  appears  by  certificate  of  the  Board  of 

Revision  of  Taxes  hereunto  annexed,  marked  "Exhibit  — ,"48 

(8)  That  the  said  sale  may  be  made  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 

(45)  See  note  14,  ante.  . 

(46)  This  averment  need  only  be  inserted  by  local  rule  of  court. 


FORMS  of  PETITION  AND  DECREE.  263 

and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  confirming  the  said  sale,  and  appointing  William  Burns 
trustee  to  carry  out  the  same,  deliver  the  deed  to  the  purchaser, 
and  hold  the  purchase-money  until  the  death  of  George  Brown 
in  accordance  with  the  provisions  of  the  will  of  the  said  Daniel 
Brown,  deceased,  so  that  the  title  of  the  purchaser  shall  be  in  fee 
simple  and  indefeasible  by  any  party  or  persons  having  a  present 
or  expectant  interest  in  the  said  premises,  and  unprejudiced  by 
any  error  in  the  proceedings  of  the  court. 

And  we  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the day  of ,  19 — ,  on  consideration 

of  the  foregoing  petition,  and  on  motion  of  Roger  B.  Taney, 
Esq.,  counsel  for  the  petitioner,  it  appearing  that  it  will  be  to  the 
interest  and  advantage  of  all  parties  that  the  premises  described 

in  the  forgoing  petition,  to  wit,  \ should  be  sold  to 

John  Clark  for  the  price  of  $20,000,  and  that  the  said  sum  of  $20,- 
ooo  is  a  better  price  than  could  be  obtained  at  public  sale,  and  that 
the  same  may  be  made  without  injury  or  prejudice  to  any  trust, 
charity  or  purpose  for  which  the  same  is  held,  and  without  the 
violation  of  any  law  which  may  confer  an  immunity  or  exemption 
from  sale  or  alienation,  IT  IS  ORDERED,  ADJUDGED  AND 
DECREED  that  the  said  private  sale  be  confirmed,  that  William 
Burns  be  appointed  trustee  to  carry  out  the  same,  that  William 
Burns  be  and  he  is  hereby  authorized  to  convey  the  said  premises 
to  John  Clark  for  $20,000,  the  title  of  the  purchaser  to  be  in  fee 
simple,  free,  clear  and  discharged  of  the  executory  devise  to 
Thomas  Brown,  and  indefeasible  by  any  party  or  persons  having 
a  present  or  expectant  interest  in  the  said  premises,  and  be  un- 
prejudiced by  any  error  in  the  proceedings  of  the  court ;  the  said 
sum  of  $20,000  to  be  held  by  the  said  William  Burns,  trustee,  un- 
til the  death  of  George  Brown,  and  then  paid  over  to  the  person 
entitled  under  the  limitations  in  the  will  of  the  said  Daniel  Brown, 
deceased,  the  said  William  Burns  first  entering  security  in  the 
sum  of  $40,000. 


264  FORMS  OF  PETITION  AND  DECREE. 

For  the  Sale  of  Redeemable  Ground  Rent. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF  — 
Term,  19 — .     No. . 


ESTATE  OF  THOMAS  BROWN,  A  MINOR. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  guardian  of  Thomas  Brown,  a 
minor,  who  is  owner  in  fee47  of  the  ground  rent  hereinafter  de- 
scribed, respectfully  represents: 

1 i )  That  your  petitioner  was  duly  appointed  guardian  of  the 

said  Thomas  Brown  by  your  Honorable  Court  on  the day 

of ,  19—. 

(2)  That  Daniel  Brown  being  seized  in  fee  of  the  ground  rent 

hereinafter  described,  departed  this  life  on  the  ' —  day  of 

,  19 — ,  intestate  and  unmarried,  leaving  to  survive  him  the 

said  Thomas  Brown,  and  no  other  child  or  issue  of  a  deceased 
child. 

(3)  That  the  said  yearly  ground  rent  is  described  as  follows: 
(Here  insert  description). 

(4)  That  the  said  yearly  ground  rent  is  redeemable,  and  by  the 
terms  of  the  deed  reserving  the  same,  copy  of  which  is  hereunto 
annexed  marked  "Exhibit  A.,"  it  is  provided  that  the  same  may 
be  redeemed  upon  payment  of  the  capital  sum  of  $5,000. 

(5)  That  your  petitioner  has  contracted  to  sell  the  said  yearly 
ground  rent  to  John  Clark  for  the  sum  of  $5,000,  and  all  arrear- 
ages of  ground  rent  to  the  day  of  settlement,  by  agreement  of  sale, 
copy  of  which  is  hereunto  annexed  marked  "Exhibit  B." 

(6)  That  it  will  be  to  the  interest  and  advantage  of  the  said 
minor  that  the  ground  rent  should  be  sold  for  the  reason  that  the 
purchase;  price  is  the  full  capital  sum  of  the  rent,  and  is  more 
than  could  be  realized  for  the  same  at  public  sale ;  and  the  prem- 
ises out  of  which  the  said  ground  rent  issues  are  dilapidated,  de- 
teriorating in  value,  and  at  the  present  time  not  worth  much  more 
than  the  said  sum  of  $5,000. 

(7)  That  there  is  no  prospect  of  any  increase  in  the  value  of 
the  premises,  and  the  ground  rent  is  therefore  in  jeopardy  by  rea- 
son of  the  small  security  for  its  payment.     The  interest  of  the 
minor  will  therefore  be  better  subserved  by  realizing  the  principal 

(47)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  265 

sum  of  the  rent  so  that  your  petitioner  may  invest  it  in  a  safer 
security,  although  the  rate  of  interest  will  be  lower  than  that  now 
received. 

(8)  That  the  sale  may  be  made  without  injury  or  prejudice  to 
any  trust,  charity  or  purpose  for  which  the  ground  rent  is  held, 
and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation. 

(9)  That  the  premises  out  of  which  the  said  ground  rent  is  is- 
sued are  assessed  for  taxation  for  the  year for  $ , 

as  appears  by  certificate  hereunto  attached.48 

Your  petitioner  therefore  prays  your  Honorable  Court,  under 
the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  503,"  for  a  de- 
cree confirming  the  said  sale,  and  authorizing  and  empowering 
him  to  convey  the  said  ground  rent  to  the  said  John  Clark  for  the 
price  aforesaid;  the  title  of  the  purchaser  to  be  in  fee  simple, 
indefeasible  by  any  party  or  persons  having  a  present  or  expectant 
interest  in  the  premises,  and  unprejudiced  by  any  error  in  the  pro- 
ceedings of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the  ' ,  on  consideration  of  the  fore- 
going petition  and  affidavits  thereunto  annexed,  and  on  motion  of 
John  B.  Gibson,  Esq.,  counsel  for  the  petitioner  it  appearing  that 
it  will  be  to  the  interest  and  advantage  of  the  said  Thomas  Brown 
that  the  said  yearly  ground  rent  (here  insert  reference  to  ground 
rent)  should  be  sold  for  $5,000,  which  is  a  better  price  than  can 
be  realized  at  public  sale,  and  that  the  same  may  be  done  with 
without  injury  or  prejudice  to  any  trust,  charity  or  purpose  for 
which  the  same  is  held,  and  without  the  violation  of  any  law  which 
may  confer  an  immunity  or  exemption  from  sale  or  alienation  IT 
IS  ORDERED  AND  DECREED  that  the  said  sale  by  William 
Burns,  guardian  of  Thomas  Brown,  to  John  Clark  be  and  the 
same  is  hereby  confirmed,  and  the  said  William  Burns,  guardian 
as  aforesaid,  is  hereby  authorized  and  empowered,  upon  receipt 
of  the  said  sum  of  $5,000  and  arrearages  of  the  said  ground  rent 
to  the  day  of  payment,  to  convey  the  same  to  the  said  John  Clark, 
the  title  of  the  purchaser  to  be  in  fee  simple,  indefeasible  by  any 

(48)  This  averment  only  need  be  inserted  when  required  by  local  rule 
of  court. 

(49)  See  note  14,  ante. 
18 


266  FORMS  of  PETITION  AND 

party  or  persons  having  a  present  or  expectant  interest  in  the 
premises,  and  unprejudiced  by  any  error  in  the  proceedings  of  the 
court.  The  said  William  Burns  first  entering  security  in  the  sum 
of  $10,000. 


Sale  of  Irredeemable  Ground  Rent. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 
Term,  19 — .     No. . 


ESTATE  OF  THOMAS  BROWN,  A  MINOR. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  guardian  of  Thomas  Brown, 
a  minor,  who  is  owner  in  fee60  of  the  ground  rent  hereinafter  de- 
scribed, respectfully  represents : 

(1)  That  your  petitioner  was  duly  appointed  guardian  of  the 
estate  of  the  said  Thomas  Brown  by  your  Honorable  Court  on  the 
day  of ,  A.  D.  19 — . 

(2)  That  Daniel  Brown  being  seized  in  fee  of  the  ground  rent 
hereinafter  described,  departed  this  life  on  the > — ,  in- 
testate and  unmarried,  leaving  to  survive  him  the  said  Thomas 
Brown,  and  no  other  child  or  issue  of  a  deceased  child. 

(3)  That  the  said  yearly  ground  rent  is  described  as  follows: 
(Here  insert  description). 

(4)  That  your  petitioner  has  sold  the  said  yearly  ground  rent 
to  Thomas  L.  Kane  for  the  price  of  $10,000,  by  agreement  of  sale, 
copy  of  which  is  hereunto  annexed  marked  "Exhibit  A.,"  which 
sum  is  twice  the  capital  sum  specified  in  the  deed  reserving  the 
ground  rent  as  the  amount  to  be  paid  for  the  extinguishment  of 
the  same. 

(5)  That  it  will  be  to  the  interest  and  advantage  of  the  said 
Thomas  Brown  that  the  said  yearly  ground  rent  should  be  sold 
for  the  price  aforesaid,  because  the  annual  ground  rent  is  now 
$300,  being  6%  on  the  said  sum  of  $5,000,  and  the  sum  of  $10,000 
for  which  the  ground  rent  is  to  be  sold  will  upon  being  invested  at 
the  current  rates  of  interest,  produce  an  income  of  about  $500  per 
annum,  a  difference  in  income  which  will  be  clearly  to  the  ad- 
vantage of  the  said  Thomas  Brown. 

(50)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  267 

(6)  That  the  said  ground  rent  is  irredeemable,  as  appears  by 

the  covenant  in  the  deed  reserving  the  same,  executed  by • — 

to  — i ,  dated ,  recorded  at 

in ,  a  copy  of  which  (deed  or  covenant)  is  hereunto  an- 
nexed marked  "Exhibit  B." 

(7)  That  the  said  price  of  $10,000  is  a  better  price  than  could 
be  realized  for  the  said  ground  rent  at  public  sale. 

(8)  That  the  said  premises  are  assessed  for  taxation  for  the 

year ,  at  $ ,  as  appears  by  certificate  of  the  Board  of 

Revision  of  Taxes  hereunto  annexed,  marked  "Exhibit — ."51 

(9)  That  the  said  sale  may  be  made  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 
and  without  the  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree,  under  the  provisions  of  the  Act  of  April  18,  1853,  P.  L. 
503,"  confirming  the  sale  of  the  ground  rent,  and  authorizing 
your  petitioner  to  convey  the  same  to  the  said  Thomas  L.  Kane 
for  the  price  agreed  upon ;  the  title  of  the  purchaser  to  be  in  fee 
simple,  indefeasible  by  any  party  or  persons  having  a  present  or 
expectant  interest  therein,  and  unprejudiced  by  any  error  in  the 
proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  on  the  — • ,  on  consideration  of  the 

foregoing  petition  and  affidavits  thereunto  annexed,  and  on  motion 
of  Edward  Tilghman,  Esq.,  counsel  for  the  petitioner,  it  appearing 
that  it  will  be  to  the  interest  and  advantage  of  the  said  Thomas 
Brown  that  the  said  yearly  ground  rent  (here  refer  to  ground 
rent),  should  be  sold  to  Thomas  L.  Kane  for  $10,000,  and  it  fur- 
ther appearing  that  the  same  may  be  made  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held,  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation,  and  that  the  said 
sum  of  $10,000  is  a  better  price  than  could  be  obtained  for  the 
same  at  public  sale,  IT  IS  ORDERED  AND  DECREED  that  the 
said  sale  by  William  Burns,  guardian,  as  aforesaid,  be  and  the 
same  is  hereby  confirmed,  and  the  said  William  Burns,  guardian, 

(51)  This  averment  need  only  be  inserted  by  local  rule  of  court. 

(52)  See  note  14,  ante. 


268  FORMS  OF  PETITION  AND  DECREE. 

as  aforesaid,  is  hereby  authorized  and  empowered,  upon  receipt 
of  the  said  sum  of  $10,000,  and  all  arrearages  of  ground  rent  to 
the  day  of  settlement,  to  convey  the  said  yearly  ground  rent  to 
Thomas  L.  Kane,  the  title  of  the  purchaser  to  be  in  fee  simple, 
indefeasible  by  any  party  or  persons  having  a  present  or  expectant 
interest  in  the  said  premises,  and  unprejudiced  by  any  error  in  the 
proceedings  of  the  court;  the  said  William  Burns  first  entering 
security  in  the  sum  of  $20,000. 


Authority  to  Join  in  Amicable  Partition. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF  — 
Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  guardian  of  George  Brown, 
owner  of  an  undivided  interest53  in  the  premises  hereinafter  de- 
scribed, respectfully  represents : 

(1)  That  Daniel  Brown  died  on  February  15,  1900,  intestate, 
unmarried  and  leaving  to  survive  him  three  children,  Thomas 
Brown,  George  Brown  and  William  Brown,  of  whom  the  said 
George  Brown  is  now  under  the  age  of  twenty-one  years,  and  no 
other  child  or  issue  of  a  deceased  child. 

(2)  That  your  Honorable  Court  did  on  the  day  of 

,  19 — ,  appoint  your  petitioner  the  guardian  of  the  said 

George  Brown. 

(3)  That  the  said  Daniel  Brown  was  at  the  time  of  his  death 
seized  in  fee  of  all  those  certain  (here  recite  description  of  the 
various  premises). 

(4)  That  your  petitioner  and  the  said  Thomas  and  William 
Brown  have  agreed  upon  an  amicable  voluntary  partition  of  the 
aforesaid  premises,  by  which  partition  they  have  agreed  that  the 
said  William  Brown  shall  have  the  following  premises  (here  in- 
sert description  of  William's  premises)  ;  that  the  said  George 
Brown  shall  have  the  following  premises  (here  insert  description 
of  George's  premises) ;   that  the  said  Thomas  Brown  shall  have 

(53)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  269 

the  following  premises  (here  insert  description  of  Thomas'  prem- 
ises). 

(5)  That   owing  to  the  circumstance  that  the   said   George 
Brown  is  under  the  age  of  twenty-one  years,  he  is  unable  to  join 
in  the  said  volunary  partition,  and  this  petition  is  therefore  pre- 
sented to  your  Honorable  Court  under  the  provisions  of  the  Act 
of  April  1 8,  1853  P.  L.  503,"  for  a  decree  authorizing  your  peti- 
tioner as  guardian  aforesaid  to  execute  a  proper  deed  carrying  out 
the  aforesaid  partition. 

(6)  That  it  will  be  to  the  interest  and  advantage  of  the  said 
George  Brown  and  of  all  the  parties  in  interest  that  the  said  par- 
tition should  be  made  in  order  to  avoid  the  expense  and  delay  of 
partition  proceedings. 

(7)  That  the  same  may  be  made  without  injury  or  prejudice 
to  any  trust,  charity  or  purpose  for  which  the  same  is  held,  and 
without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation. 

(8)  That  the  said  premises  are  assessed  for  taxation  for  the 

year  at  the  sum  of  $ ,  as  appears  by  certificate  of  the  Board 

of  Revision  of  Taxes  hereunto  annexed  marked  "Exhibit  — ."55 

(9)  That  the  said  Thomas  Brown  and  George  Brown  have 
signified  their  consent  to  the  said  partition  by  joining  herein. 

Your  petitioner  therefore  prays  your  Honorable  Court  to  ratify 
and  confirm  the  aforesaid  partition,  and  authorize  and  empower 
him  as  guardian  aforesaid  to  execute  the  necessary  deeds  to  carry 
out  the  same  so  that  the  title  of  the  parties  in  severalty  thereunder 
shall  be  in  fee  simple,  indefeasible  by  any  party  or  person  having 
a  present  or  expectant  interest  in  the  premises,  and  unprejudiced 
by  any  error  in  the  proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the day  of  ,  A.  D.  ,  on  con- 
sideration of  the  foregoing  petition  and  affidavits  thereunto  an- 
nexed, and  on  motion  of  Rufus  Choate,  Esq.,  counsel  for  the  peti- 
tioner, it  appearing  that  it  is  to  the  interest  and  advantage  of  the 
said  parties  to  make  the  said  partition,  and  it  further  appearing 
that  the  same  may  be  done  without  injury  or  prejudice  to  any 

(54)  See  note  14,  ante. 

(55)  This  averment  need  only  be  inserted  in  cases  where  the  certificate 
is  required  by  local  rule  of  court. 


270  FORMS  OF  PETITION  AND  DECREE. 

trust,  charity  of  purpose  for  which  the  same  is  held,  and  without 
the  violation  of  any  law  which  may  confer  an  immunity  or  ex- 
emption from  sale  or  alienation,  IT  IS  ORDERED  AND  DE- 
CREED that  the  said  partition  be  confirmed,  and  that  William 
Burns,  guardian  of  George  Brown  aforesaid,  be  and  he  is  hereby 
authorized  and  empowered  to  execute  the  necessary  deeds  of  par- 
tition, with  the  said  Thomas  and  William  Brown,  and  that  the 
title  of  the  said  parties  to  the  premises  under  the  said  deeds  of 
partition  shall  be  in  fee  simple,  indefeasible  by  any  party  or  per- 
sons having  a  present  or  expectant  interest  therein,  and  be  un- 
prejudiced by  any  error  in  the  proceedings  of  the  court. 


Form  of  Petition  for  Ratification  of  Partition."-"  Already  Made. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


The  petition  of  William  Burns,  trustee  under  the  will  of  Dan- 
iel Brown,  deceased,  and  as  such  interested57  in  the  premises  here- 
inafter described,  respectfully  represents: 

(1)  That  Daniel  Brown  died  on  the  I5th  day  of  January,  A. 
D.  1910,  having  first  made  and  published  his  last  will  and  testa- 
ment, a  copy  whereof  is  hereunto  annexed  marked  "Exhibit  A.," 
wherein  and  whereby  he  did  divide  his  residuary  estate  into  three 
parts,  one  part  thereof  he  gave  to  his  son,  Thomas  Brown ;  one 
part  to  his  son,  George  Brown,  and  the  other  one-third  equal  part 
to  your  petitioner,  in  trust  for  his  daughter,  Sallie,  intermarried 
with  Lewis  Riley. 

(2)  That  the  said  Daniel  Brown  was  at  the  time  of  his  death 
seized  in   fee  of  all  those  certain    (here  insert  description  of 
premises). 

(56)  It  sometimes  happens  that  through  inadvertence  parties  under  dis- 
ability have  entered  into  an  amicable  partition,  and  the  defect  is  subse- 
quently discovered,  whereupon  it  will  appear  that  the  title  of  the  several 
tenants  in  common  under  the  partition  deed  will  be  defective.     In  such 
case  the  Orphans'  Court  may  ratify  and  confirm  the  partition  and  remove 
the  defect. 

(57)  See  note  10,  ante. 


FORMS  OF  PETITION  AND 

(3)  That  the  said  Thomas  and  George  Brown  and  your  peti- 
tioner having  agreed  upon  a  fair,  just  and  equal  partition  of  the 
aforesaid  premises  of  which  Daniel  Brown  died  seized,  by  deed 
dated  the  i$th  day  of  June,  1912,  made  an  amicable  voluntary 
partition  thereof,  which  deed  has  been  duly  recorded  in  the  Re- 
corder's Office  in  and  for  the  County  of ,  in  Deed  Book, 

,  by  which  deed  the  following  partition  of  the  premises 

was  made;  that  the  said  George  Brown  should  have  (here  insert 
George's  premises)  ;    that  the  said  Thomas  Brown  should  have 
(here  insert  Thomas's  premises)  ;  that  your  petitioner  as  trustee 
under  the  will  of  Daniel  Brown  should  have  (here  insert  the  trus- 
tee's premises). 

(4)  That  since  the  making  of  the  said  deed  the  said  parties 
have  entered  into  possession  of  the  several  purparts,  and  have 
remained  in  undisturbed  possession  thereof  from  that  time  to  the 
present  date. 

(5)  That  the  said  partition  is  an  equal,  fair  and  just  one,  to 
the  interest  and  advantage  of  all  parties,  and  does  no  injury  to  any 
trust,  charity  or  purpose  for  which  the  same  is  held,  and  does  not 
violate  any  law  which  may  confer  an  immunity  or  exemption  from 
sale  or  alienation. 

(6)  That  the  said  Thomas  Brown  and  George  Brown  have 
been  duly  notified  of  this  petition,  as  appears  by  their  joinder 
herein,  and  the  said  Sallie  Riley  and  Lewis,  her  husband,  have 
signified  their  consent  to  the  said  partition  by  joining  herein  in 
like  manner. 

(7)  That  the  said  premises  are  assessed  for  taxation  for  the 

year at  $ ,  as  appears  by  certificate  of  the  Board  of 

Revision  of  Taxes  hereunto  annexed,  marked  "Exhibit  — ."68 

(8)  That  your  petitioner  has  since  been  advised  that  by  reason 
of  the  fact  that  there  is  no  power  in  the  will  of  Daniel  Brown 
conferring  authority  to  make  partition,  that  his  joinder  as  trustee 
in,  the  aforesaid  deed  of  partition  is  null  and  void  and  of  no  ef- 
fect.    He  therefore  petitions  your  Honorable  Court  under  the 
provisions  of  the  Act  of  April  18,  1853,  P.  L.  5O3,59  for  a  decree 
ratifying  and  confirming  the  aforesaid  partition  and  your  peti- 
tioner's joinder  therein,  and  for  a  decree  ratifying  the  same,  and 
directing  that  the  titles  of  the  several  tenants  in  common  shall  be 

(58)  This  averment  need  only  be  inserted  by  local  rule  of  court. 

(59)  See  note  14,  ante. 


272  FORMS  OF  PETITION  AND  DECREE. 

in  fee  simple,  indefeasible  by  any  party  or  persons  having  a  pres- 
ent or  expectant  interest  therein  and  unprejudiced  by  any  error  in 
the  proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the  day  of  ,  A.  D.  19—,  on  con- 
sideration of  the  foregoing  petition  and  affidavits  thereunto  an- 
nexed, and  on  motion  of  Daniel  Webster,  Esq.,  counsel  for  the 
petitioner,  it  appearing  that  the  said  partition  which  has  been  made 

by  the  parties  thereto  under  deed  dated  the  — > day  of , 

19 — ,  recorded  in  Recorder's  Office  in  and  for  the  County  of 

,  in  Deed  Book ,  is  a  fair,  just  and  equal  partition, 

and  is  to  the  interest  and  advantage  of  the  parties,  and  that  it 
does  not  injure  or  prejudice  any  trust,  charity  or  purpose  for 
which  the  same  is  held,  and  does  not  violate  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation,  IT  IS 
ORDERED  AND  DECREED  (i)  that  the  said  partition  be  and 
the  same  is  hereby  confirmed,  (2)  that  the  joinder  in  the  afore- 
said partition  deed  dated  ,  recorded  ,  by  the  said 

William  Burns,  trustee  under  the  will  of  Daniel  Brown,  deceased, 
be  and  the  same  is  hereby  ratified  and  confirmed,  with  the  same 
force  and  effect  as  if  the  court  had  authorized  the  joinder  of  the 
said  William  Burns  therein  prior  to  the  date  of  the  deed.  AND 
IT  IS  FURTHER  ORDERED  that  the  title  of  the  several  ten- 
ants in  common  under  the  said  deed  of  partition  shall  be  in  fee 
simple,  indefeasible  by  any  party  or  persons  having  a  present  or 
expectant  interest  therein,  and  be  unprejudiced  by  any  error  in 
the  proceedings  of  the  court. 


(Persons  Absent  and  Unheard  From  for  More  Than  Seven  Years.) 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF . 

Term,  19 — .     No. . 


ESTATE  OF  THOMAS  BROWN,  SUPPOSED  TO  BE  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  Henry  Brown,  a  tenant  in  common  in  fee60  of 
the  hereinafter  described  premises,  respectfully  represents: 

(60)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  273 

(1)  That  Daniel  Brown  died  on  the  i5th  day  of  January,  A.  D. 
1874,  intestate  and  unmarried,  leaving  to  survive  him  issue  five 
children   as    follows:     Thomas    Brown,    Henry    Brown,    James 
Brown,  Susan,  since  married  to  Lewis  Rice,  Polly  since  married 
to  James  Smith,  and  no  other  child  or  issue  of  a  deceased  child. 

(2)  That  the  said  Daniel  Brown  was  at  the  time  of  his  death 
seized  of  ALL  THAT  CERTAIN   (here  insert  description  of 
premises) . 

(3)  That  the  persons  interested  in  the  said  premises  are  as  set 
forth  in  the  following  table : 

Thomas  Brown,  one-fifth. 
Henry  Brown,  one-fifth. 
James  Brown,  one-fifth. 
Susan  Rice,  one-fifth. 
Polly  Smith,  one-fifth. 

(4)  That  Thomas  Brown,  a  son  of  the  said  Daniel  Brown,  de- 
parted this  jurisdiction  on  or  about  the  first  day  of  January,  A.  D. 
1900,  and  has  been  absent  and  unheard  from  for  more  than  seven 
years,  that  is  to  say,  from  that  time  to  the  time  of  the  filing  of  this 
petition,  under  circumstances  from  which  the  law  would  presume 
his  decease. 

(5)  That  your  petitioner  and  the  other  parties  in  interest  have 
contracted  to  sell  the  said  premises  to  John  Clark  for  the  price  of 
$10,000  by  agreement  of  sale,  copy  of  which  is  hereunto  annexed 
marked  "Exhibit  A." 

(6)  That  your  petitioner  and  the  other  parties  in  interest  are 
unable  to  convey  the  interest  of  the  said  Thomas  Brown,  who  has 
been  absent  and  unheard  from  under  the  circumstances  afore- 
said.61 

(7)  That  this  petition  is  presented  to  your  Honorable  Court 
under  the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  5O3,62  for 

(61)  It  does  not  seem  necessary  to  set  out  in  the  petition  in  detail  the 
evidence  concerning  the  departure  or  absence  of  the  person  supposed  to  be 
deceased.    The  court  will  undoubtedly  in  every  such  case,  unless  the  pre- 
sumption of  death  has  already  been  made  out  in  other  proceedings,  as, 
for  instance,  where  the  personal  estate  has  been  distributed  under  the  Act 
of  1885,  appoint  an  examiner  to  take  testimony  or  direct  a  hearing  before 
the  court.     It  seems  therefore  only  necessary  to  set  out  the  formal  aver- 
ment in  the  petition  itself. 

(62)  See  note  14,  ante. 


274  FORMS  OF  PETITION  AND 

the  purpose  of  conveying  the  interest  of  the  said  Thomas  Brown, 
supposed  to  be  deceased  as  aforesaid. 

(8)  That  the  price  of  $10,000  aforesaid  is  a  better  price  than 
could  be  obtained  for  the  said  premises  at  public  sale,  and  it  is  to 
the  interest  and  advantage  of  the  said  parties  that  the  sale  should 
be  made  in  order  that  the  parties  may  avoid  the  expense  of  parti- 
tion proceedings  and  the  disadvantage  of  holding  the  premises 
longer  in  the  present  condition  of  undivided  ownership,  with  one 
of  the  owners  absent  where  he  cannot  be  communicated  with. 

(9)  That  the  said  premises  are  assessed  for  taxation  for  the 

year -,  at  $ ,  as  appears  by  certificate  of  the  Board  of 

Revision  of  Taxes  hereunto  annexed,  marked  "Exhibit  — ,"63 

(10)  That  the  sale  may  be  made  without  injury  or  prejudice 
to  any  trust,  charity  or  purpose  for  which  the  same  is  held,  and 
without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation. 

(n)  That  the  other  parties  in  interest,  to  wit,  Henry  Brown, 
James  Brown,  Susan  Rice  and  her  husband,  Lewis  Rice,  Polly 
Smith  and  her  husband,  James  Smith,  have  signified  their  ac- 
quiescence in  the  said  sale  and  joined  in  this  petition. 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  confirming  said  sale  and  appointing  William  Burns,  trus- 
tee, to  carry  out  the  same  on  behalf  of  the  said  Thomas  Brown, 
supposed  to  be  deceased,  and  directing  him  to  convey  the  same  to 
the  said  John  Clark  upon  receipt  of  the  proportionate  share  of  the 
said  Thomas  Brown  in  the  purchase-money,  the  title  of  the  pur- 
chaser to  be  a  fee  simple  interest  and  indefeasible  by  any  party 
or  persons  having  a  present  or  expectant  interest  in  the  said  prem- 
ises, and  be  unprejudiced  by  any  error  in  the  proceedings  of  the 
court. 

And  he  will  ever 'pray,  etc.64 

Preliminary  Decree. 
AND  NOW, ,  on  consideration  of  the  foregoing 

(63)  This  averment  need  only  be  inserted  when  required  by  local  rule 
of  court. 

(64)  It  is  not  necessary  to  insert  forms  covering  the  intermediate  pro- 
ceedings relating  to  the  appointment  of  an  examiner  or  to  a  hearing  be- 
fore the  court.    When  those  proceedings  have  been  so  concluded  that  the 
court  is  satisfied  that  the  presumption  of  death  is  made  out,  a  preliminary 
decree  may  be  entered  as  follows. 


FORMS  OF  PETITION  AND  DECREE.  275 

petition,  and  on  motion  of  Joseph  Story,  Esq.,  counsel  for  the  pe- 
titioner, it  appearing  that  the  said  Thomas  Brown  has  been  absent 
and  unheard  from  for  more  than  seven  years,  that  is  to  say,  from 
the  -  ,  under  circumstances  from  which  the  law  will 
presume  his  decease,  IT  IS  ORDERED  AND  DECREED  that 
notice  be  given  by  publication  (here  insert  the  terms  of  the  pub- 
lication) that  the  foregoing  petition  will  be  persented  to  the  court 
on  the  -  day  of  -  at  -  A.  M.,  and  a  decree  be  made 
confirming  the  said  sale  unless  cause  be  shown  to  the  contrary. 


Decree. 

AND  NOW,  the  -  ,  on  consideration  of  the  foregoing 
petition  and  affidavits  thereunto  annexed,  it  appearing  that  due  no- 
tice by  publication  has  been  given  as  directed  by  the  preliminary 
decree  heretofore  entered,  and  it  further  appearing  that  no  ob- 
jections have  been  made  to  the  granting  of  the  petition,  and  on 
motion  of  Joseph  Story,  Esq.,  counsel  for  the  petitioner,  it  ap- 
pearing that  Thomas  Brown,  son  of  Daniel  Brown,  deceased,  has 
been  absent  and  unheard  from  for  more  than  seven  years  under 
circumstances  from  which  the  law  will  presume  his  decease  ;  and 
it  further  appearing  that  it  is  to  the  interest  and  advantage  of  all 
parties  in  interest  that  the  premises  described  in  the  foregoing 
petition,  to  wit,  -  *  -  ,  should  be  sold  to  the  said  John 
Clark  for  the  sum  of  $10,000  for  the  whole,  the  said  sum  of 
$10,000,  being  a  better  price  than  could  be  obtained  at  public  sale, 
and  that  the  same  may  be  done  without  injury  or  prejudice  to  any 
trust,  charity  or  purpose  for  which  the  same  is  held,  and  without 
the  violation  of  any  law  which  may  confer  an  immunity  or  ex- 
emption from  sale  or  alienation,  IT  IS  ORDERED  AND  DE- 
CREED (i)  that  the  aforesaid  sale  to  John  Clark  for  $10,000  be 
and  the  same  is  hereby  confirmed,  (2)  that  William  Burns  is  ap- 
pointed trustee  to  carry  out  the  same  on  behalf  of  the  said  Thomas 
Brown,  supposed  to  be  deceased  as  aforesaid,  (3)  that  the  said 
William  Burns,  trustee  as  aforesaid,  be  and  he  is  hereby  author- 
ized to  join  in  the  deed  of  the  said  premises  to  the  said  John  Clark 
for  the  price  of  $10,000  for  the  whole,  upon  receipt  of  the  share 
of  the  said  Thomas  Brown  therein,  the  title  of  the  purchaser  to 
be  a  fee  simple  title  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  in  the  said  premises  ;  and  unpreju- 


276  FORMS  OF  PETITION  AND 

diced  by  any  error  in  the  proceedings  of  the  court ;  the  said  Wil- 
liam Burns  first  entering  security  in  the  sum  of  $4,000. 


Public  Sale  of  Trust  for  a  Charity. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 
Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  trustee  under  the  will  of  Daniel 
Brown,  deceased,  and  as  such  interested65  in  the  premises  herein- 
after described,  respectfully  represents : 

(1)  That  Daniel  Brown  died  on  the  I5th  of  December,  A.  D. 
1895,  having  first  made  and  published  his  last  will  and  testament 
in  writing  dated  the ,  a  true  copy  whereof  is  here- 
unto annexed  marked  "Exhibit  A.,"  by  which  he  devised  a  certain 
tract  of  land,  adjoining  his  farm  to  your  petitioner,  in  trust,  upon 
which  he  directed  his  trustee  to  construct  and  maintain  a  school 
for  the  education  of  poor  young  girls  of  the  neighborhood. 

(2)  That  the  said  premises  are  described  as  follows:     (Here 
insert  description  of  premises). 

(3)  That  your  petitioner  caused  said  premises  to  be  exposed  to 
public  sale  at  the  salesroom  of  Messrs.  Sims  &  Sons,  at  10  o'clock 
A.  M.,  on  Wednesday,  April  i,  1914,  due  notice  of  said  sale  hav- 
ing been  properly  given  by  full  advertisement  for  at  least  twenty 
days  by  handbills  posted  in  at  least  twenty  of  the  most  public 
places  in  the  county,  and  by  notice  published  in  two  newspapers, 

to  wit,  the and  the ,  not  less  than  three  times  in 

each,  due  proof  of  which  publication  is  hereto  annexed  marked 
"Exhibit  B."66 

(65)  See  note  10,  ante. 

(66)  In  the  case  of  a  petition  to  ratify  a  public  sale,  it  should  be  form- 
ally set  out  that  the  notice  prescribed  by  the  act  has  been  given,  and  proof 
should  be  attached  to  the  publication  of  that  notice.    This  proof  should  be 
in  the  shape  of  an  affidavit  by  some  disinterested  party  that  the  publica- 
tion was  made,  giving  a  copy  of  the  notice  printed  in  the  papers,  and  by 
affidavit  of  the  party  who  posted  the  handbills  that  he  actually  posted  them 
in  twenty  public  places,  or  this  matter  may  be  regulated  by  a  local  rule  of 
court.    If  so,  the  petition  should  conform  thereto. 


FORMS  OF  PETITION  AND  DECREE.  277 

(4)  That  the  premises  were  sold  on  the  day  and  at  the  time 
aforesaid  to  John  Clark  for  $20,000,  he  being  the  highest  and  best 
bidder,  and  that  being  the  highest  and  best  bid  for  the  same. 

(5)  That  it  will  be  to  the  interest  and  advantage  of  all  parties 
that  the  premises  should  be  sold  for  the  price  aforesaid,  it  ap- 
pearing that  the  lot  of  ground  so  devised  by  Daniel  Brown  for 
the  purpose  of  constructing  a  school  thereon  is  unsuitable  for  the 
purpose,  a  large  factory  having  recently  been  constructed  in  the 
neighborhood  thereof,  the  noise,  smoke  and  dust  from  which  will 
disturb  the  quiet  and  privacy  necessary  for  the  protection  and 
education  of  poor  young  young  girls. 

(6)  That  the  said  premises  are  assessed  for  taxation  for  the 

year ,  at  $ ,  as  appears  by  certificate  of  the  Board  of 

Revision  of  Taxes  hereunto  annexed,  marked  "Exhibit  — ."87 

(7)  That  your  petitioner  has  made  an  arrangement  with  the 

trustees  of  the  — < association,  situate  in  the  county 

aforesaid,  which  is  provided  with  sufficient  buildings  and  instruct- 
ors to  adequately  care  for  the  education  of  poor  young  girls,  by 
which  arrangement  the  income  arising  from  the  fund  left  under 
the  will  of  Daniel  Brown,  deceased,  shall  be  used  for  the  mainte- 
nance at  that  home  of  a  certain  number  of  poor  young  girls,  pend- 
ing the  arrangement  your  petitioner  may  be  able  to  make  for  the 
selection  of  a  suitable  lot  of  ground  and  the  construction  of  a 
building  to  carry  out  the  charitable  wishes  of  the  testator. 

Your  petitioner  therefore  avers  that  it  is  to  the  interest  and  ad- 
vantage of  all  parties  that  the  sale  my  be  made,  and  that  the 
same  may  be  made  without  injury  or  prejudice  to  any  trust,  char- 
ity or  purpose  for  which  the  same  is  held,  and  without  the  vio- 
lation of  any  law  which  may  confer  an  immunity  or  exemption 
from  sale  or  alienation. 

He  therefore  prays  your  Honorable  Court  for  a  decree  under 
the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  5O3,68  confirm- 
ing the  said  sale,  and  directing  him  to  carry  out  the  same  so  that 
the  titlejof  the  purchaser  shall  be  a  fee  simple  title,  indefeasible 
by  any  party  or  persons  having  a  present  or  expectant  interest  in 
the  premises,  and  unprejudiced  by  any  error  in  the  proceedings 
of  the  court. 

And  he  will  ever  pray,  etc. 

(67)  This  averment  need  only  be  inserted  when  required  by  local  rule  of 
court. 

(68)  See  note  14,  ante. 


278  FORMS  OF  PETITION  AND  DECREE. 

Decree. 

AND  NOW, ,  on  consideration  of  the  foregoing 

petition,  and  on  motion  of  John  Marshall,  Esq.,  attorney  for  the 
petitioner,  it  appearing  that  it  will  be  to  the  interest  and  advantage 
of  the  said  parties  that  the  premises  described  in  the  foregoing 

petition,  to  wit: • —  should  be  sold  to  John  Clark  for 

the  price  of  $20,000,  and  that  the  same  may  be  made  without  in- 
jury or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held,  and  without  the  violation  of  any  law  which  may  con- 
fer an  immunity  or  exemption  from  sale  or  alienation,  IT  IS 
ORDERED  AND  DECREED  that  the  said  public  sale  to  John 
Clark  be  confirmed,  and  that  William  Burns,  a  trustee  under  the 
will  of  Daniel  Brown,  deceased,  be  and  he  is  hereby  authorized  to 
convey  the  said  premises  to  the  said  John  Clark,  for  the  price  of 
$20,000,  the  title  of  the  purchaser  to  be  in  fee  simple,  indefeasible 
by  any  party  or  persons  having  a  present  or  expectant  interest  in 
the  premises,  and  unprejudiced  by  any  error  in  the  proceedings 
of  the  court;  the  said  William  Burns  first  entering  security  in 
the  sum  of  $40,000. 


Public  Sale,  Subdividing  Tract  and  Vacating  Roads. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 

Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  trustee  under  the  will  of  Daniel 
Brown,  deceased,  and  as  such  interested69  in  the  premises  herein- 
aeter  described,  respectfully  represents : 

(1)  That  Daniel  Brown  died  on  the  28th  day  of  June,  1902, 

having  first   made   his   will   dated   ,   a  true   copy 

whereof  is  hereunto  annexed  marked  "Exhibit  A.,"  by  which  he 
devised  his  residuary  estate  to  your  peitioner  upon  the  trusts 
therein  declared. 

(2)  That  the  said  Daniel  Brown  died  seized,  inter  alia,  in  fee 
of  all  that  certain  (here  describe  premises). 

(69)  See  note  10,  ante.  .  .1 


FORMS  of  PETITION  AND  DECREE.  279 

(3)  That  the  said  premises,  consist  of  a  large  tract  of  land 
situate  in  the  outskirts  of  the  city  of  Pittsburgh,  and  over  which 
the  said  Daniel  Brown  in  his  lifetime  laid  out  certain  streets,  in- 
tending to  divide  the  said  tract  into  bulding  lots. 

(4)  That  the  said  streets  have  not  been  accepted  by  the  pub- 
lic authorities,  and  that  it  now  appears  advantageous  to  vacate  the 
said  streets  and  lay  out  others  in  lieu  thereof,  and  divide  the  said 
tract  of  land  into  a  different  division  of  lots,  as  appears  by  a 
plan  hereunto  annexed  marked  "Exhibit  B." 

(5)  That  it  is  to  the  interest  and  advantage  of  the  said  trust 
estate  and  of  all  the  cestuis  que  trustent  therein  named,  all  of 
whom  have  signified  their  consent  to  the  sale  hereinafter  de- 
scribed by  joining  herein,  that  the  said  premises  should  be  sold  be- 
cause they  are  unproductive,  subject  to  a  liability  for  taxation  and 
in  the  neighborhood  of  a  growing  part  of  the  city  so  that  the 
premises  are  now  ripe  for  improvement,  and  by  selling  the  same 
for  that  purpose  the  trust  estate  will  be  materially  benefited,  as 
the  purchase  price  will,  when  invested,  yield  a  greater  income 
than  the  premises  in  their  present  condition,  and  your  petitioner 
is  unable  to  improve  the  premises  by  building  thereon,  as  such  im- 
provement would  require  the  expenditure  of  a  large  sum  of 
money  which  he  would  would  have  to  borrow  for  that  purpose. 

Your  petitioner  therfore  caused  the  said  premises  to  be  exposed 
to  public  sale,  as  per  the  said  plan  hereunto  annexed,  at  the  auc- 
tion rooms  of  J.  W.  Sims  &  Co.,  on  February  20,  1910;  due 
notice  thereof  having  first  been  given  for  at  least  twenty  days  by 
handbills  posted  in  at  least  twenty  of  the  most  public  places  in  the 
said  city  of  Pittsburgh,  and  by  notice  published  in  at  least  two 

newspapers,  to  wit,  the  -1 and  the  ,  not  less  than 

three  times  in  each,  that  is  to  say,  in  each  paper  on  the , 

on  the,  and  on  the  ,  due  proof  of  which  publication  is 

hereunto  annexed  marked  "Exhibit  C." 

(6)  That  at  the  public  auction  sale  of  the  said  premises  held 
as  aforesaid,  a  number  of  the  lots  of  ground  described  in  the  said 
plan  were  sold  to  various  purchasers,  as  follow: 

Lot  No.  i  to  Thomas  Clark  for  $500. 

Lot  No.  2  to  William  Smith  for  $500. 

(etc.,  etc.,  here  specify  the  lots  sold  to  the  different  purchasers), 
the  prices  so  realized  being  the  highest  and  best  price  in  each  case 
bidden  for  the  same. 


280  FORMS  OF  PETITION  AND  DECREE. 

(7)  That  the  said  premises  may  be  sold  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held,  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation. 

(8)  That  it  is  desirable  to  vacate  the  streets  so  laid  out  by  the 
said  Daniel  Brown,  as  aforesaid,  and  in  lieu  thereof  to  open  and 
dedicate  the  streets  shown  upon  the  plan  marked  "Exhibit  B." 

(9)  That  there  is  no  power  of  sale  in  the  will  of  the  said  Daniel 
Brown,  deceased. 

(10)  That  the  said  premises  are  assessed  for  taxation  for  the 

year at  $ as  appears  by  the  certificate  of  the  Board 

of  Revision  of  Taxes  hereunto  annexed  marked  "Exhibit  — ."70 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  under  the  provisions  of  the  Act  of  April  18,  1853,  P.  L. 
503,™  ratifying  and  confirming  the  said  several  sales  of  the  said 
lots  of  ground  as  hereinbefore  mentioned  to  the  said  several  pur- 
chasers, and  vacating  the  said  streets  laid  out  by  the  said  testator 
and  opening  the  streets  laid  out  by  your  petitioner,  as  aforesaid, 
and  authorized  and  empowering  your  petitioner  to  convey  by  deed 
of  dedication  the  said  streets  to  the  public  authorities  and  the  said 
tracts  of  ground  to  the  several  purchasers ;  the  title  of  each  pur- 
chaser to  be  in  fee  simple,  indefeasible  by  any  party  or  persons 
having  a  present  or  expectant  interest  therein,  and  unprejudiced 
by  any  error  in  the  proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the ,  on  consideration  of  the  fore- 
going petition  and  affidavits  thereunto  annexed,  and  on  motion  of 
John  Marshall,  Esq.,  counsel  for  the  petitioner,  it  appearing  that 
all  the  cestuis  que  trustent  interested  under  the  will  of  Daniel 
Brown  have  joined  therein,  and  that  it  will  be  to  the  interest  and 
advantage  of  all  parties  that  the  said  premises  should  be  sub- 
divided as  set  out  in  the  said  petition,  and  the  streets  laid  out  and 
dedicated  by  the  testator  should  be  vacated,  and  that  the  streets 
laid  out  by  the  said  William  Burns,  trustee  under  the  will  of  said 
Daniel  Brown,  should  be  opened,  and  further,  that  the  said  several 

(70)  This  averment  need  only  be  inserted  when  required  by  local  rule 
of  court. 

(71)  See  note  14,  ante. 


FORMS  OF  PETITION  AND  DECREE.  281 

lots  of  ground  should  be  sold  to  the  said  purchasers  as  follows, 
to  wit:  (here  insert),  and  that  the  same  may  be  done  without 
injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held  and  without  the  violation  of  any  law  which  may  con- 
fer an  immunity  or  exemption  from  sale  or  alienation,  IT  IS 
ORDERED  AND  DECREED  that  the  sales  of  the  said  lots  of 
ground  to  the  several  purchasers  for  the  price  aforesaid  be  and 
they  are  hereby  confirmed;  that  the  said  William  Burns  be  and 
he  is  hereby  authorized  to,  in  order  to  carry  out  the  said  sales, 
subdivide  the  said  tract  as  set  out  in  the  said  plan  marked  "Ex- 
hibit B.,"  and  that  he  is  further  authorized  to  lay  out  and  dedicate 
to  public  use  the  streets  described  and  mentioned  on  said  plan,  and 
to  convey  the  same  to  the  city  of  Pittsburgh  by  deed  of  dedica- 
tion ;  an  he  is  further  authorized  and  empowered  to  carry  out  the 
several  contracts  of  sale  made  with  the  purchasers  as  aforesaid, 
and  to  convey  to  each  the  lot  of  ground  sold  to  him  upon  the 
receipt  of  the  purchase  price;  the  title  of  each  purchaser  to 
his  lot  of  ground  to  be  in  fee  simple,  indefeasible  by  any  party  or 
persons  having  a  present  or  expectant  interest  in  the  premises, 
and  unprejudiced  by  any  error  in  the  proceedings  of  the  court; 
the  said  William  Burns  first  entering  security  in  the  sum  of 


Private  Sale.    Trustee  Without  Power  of  Sale. 

IN  THE  COURT  OF  COMMON  PLEAS  FOR  THE  COUNTY  OF- 
Term,  1914.     No. . 


IN  RE  TRUST  UNDER  THE  DEED  OF  DANIEL  BROWN. 


The  petition  of  William  Burns,  trustee  under  the  deed  of  Daniel 
Brown,  and  interested  as  said  trustee73  in  the  premises  herein- 
after described,  respectfully  represents : 

(i)  That  Daniel  Brown,  by  deed  dated  the  3ist  day  of  Janu- 
ary, 1865,  granted  and  conveyed  the  premises  hereinafter  de- 

(72)  Security  should  be  in  double  the  amount  of  the  purchase  price  of 
all  the  lots  sold. 

(73)  See  note  10,  ante. 

19 


282  FORMS  OF  PETITION  AND  DECREE. 

scribed,  inter  alia,  unto  John  Jones,  in  trust,  to  collect  the  rents, 
issues  and  profits  thereof,  and  pay  over  the  net  income  to  the  said 
Daniel  Brown  during  the  remainder  of  his  natural  life,  and  from 
and  after  his  decease  to  pay  over  the  income  to  the  children  whom 
he  might  leave  surviving  for  their  lives  in  equal  shares  with  re- 
mainders over,  as  therein  mentioned,  a  copy  of  which  said  deed  is 
hereunto  annexed  marked  "Exhibit  A." 

(2)  That  some  of  the  children  of  the  said  Daniel  Brown,  to 
wit:    Henry  Brown,  James  Brown  and  Thomas  Brown,  are  still 
living  and  the  trusts  declared  under  the  said  deed  are  still  subsist- 
ing.   That  the  said  John  Jones  subsequently  departed  this  life,  and 
your  petitioner,  William  Burns,  was  duly  appointed  substitute 
trustee  in  his  place  by  your  Honorable  Court  on  the  i$th  day  of 
January,  A.  D.  1900. 

(3)  That  the  said  deed  of  Daniel  Brown,  inter  alia,  conveyed 
ALL  THAT  CERTAIN  (here  insert  description  of  premises). 

(4)  That  the  said  deed  of  Daniel  Brown  contains  no  power 
authorizing  the  trustee  to  sell  any  of  the  real  estate  therein  con- 
veyed. 

(5)  That  your  petitioner  has  entered  into  a  contract  of  sale 
with  John  Clark,  a  copy  of  which  is  hereunto  annexed  marked 
"Exhibit  B.,"  by  which  he  has  agreed  to  sell  the  aforesaid  premises 
in  fee  simple  for  the  sum  of  $10,000. 

(6)  That  the  said  Thomas,  Henry  and  James  Brown,  cestui 
que  trust  as  aforesaid,  have  consented  to  the  said  sale,  as  is  evi- 
denced by  their  joinder  in  this  petition.78* 

(7)  That  it  will  be  to  the  interest  and  advantage  of  the  said 
trust  estate,  as  well  as  to  the  interest  and  advantage  of , the  said 
Thomas,  Henry  and  James  Brown,  that  the  said  premises  should 
be  sold  to  the  said  John  Clark  for  $10,000  for  the  reason  that 


(8)  That  the  said  sum  of  $10,000  is  a  better  price  than  could 
be  obtained  for  the  premises  at  public  sale. 

(9)  That  the  said  premises  are  assessed  for  taxation  for  the 
year  — < at  the  sum  of  $ ,  as  appears  by  certificate  of 


(733)  In  the  case  of  trusts,  there  is  some  doubt  as  to  how  far  it  is  nec- 
essary to  notify  all  equitable  interests  in  remainder.  The  petition  as  drawn 
only  provides  for  notice  to  the  life  cestui  que  trust,  which  is  probably 
enough.  It  may  be,  however,  that  circumstances  or  the  court  will  require 
notice  to  all  parties.  See  §  138,  ante. 


FORMS  OF  PETITION  AND  DECREE.  283 

the  Board  of  Revision  of  Taxes  hereunto  annexed  marked  "Ex- 
hibit C."74 

( 10)  That  the  said  sale  may  be  consummated  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held,  and  without  violation  of  any  law  which  may  confer  an  im- 
munity or  exemption  from  sale  or  alienation. 

(11)  Your  petitioner  therefore  prays  your  Honorable  Court, 
under  the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  503,"  to 
enter  a  decree  ratifying  the  aforesaid  sale,  and  authorizing  your 
petitioner  to  consummate  the  sale  by  conveying  the  said  premises 
to  the  said  John  Clark  in  fee  simple,  so  that  the  title  of  the  pur- 
chaser shall  be  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  in  the  premises,  and  be  unprejudiced 
by  any  error  in  the  proceedings  of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the day  of ,  A.  D.  19—,  on  con- 
sideration of  the  foregoing  petition  and  affidavits  thereunto  an- 
nexed, it  appearing  that  all  of  the  cestuis  que  trustent  have  joined 
therein,  and  on  motion  of  William  Tilghman,  Esq.,  counsel  for 
the  petitioner,  it  appearing  that  it  will  be  to  the  interest  and  ad- 
vantage of  the  trust  under  the  deed  of  the  said  Daniel  Brown,  as 
well  as  to  the  interest  and  advantage  of  the  said  Thomas,  Henry 
and  James  Brown,  cestuis  que  trustent  thereunder,  that  the  prem- 
ises described  in  the  foregoing  petition,  to  wit:  (here  refer  to 
premises  specifically)  should  be  sold  to  the  said  John  Clark  for 
the  sum  of  $10,000,  and  that  the  said  sum  of  $10,000  is  a  better 
price  than  could  be  obtained  at  public  sale,  and  that  the  same  may 
be  done  without  injury  or  prejudice  to  any  trust,  charity  or  pur- 
pose for  which  the  same  is  held,  and  without  the  violation  of  any 
law  which  may  confer  an  immunity  or  exemption  from  sale  or 
alienation,  IT  IS  ORDERED  AND  DECREED  that  the  said  sale 
by  William  Burns,  substituted  trustee,  as  aforesaid  to  John  Clark 
be  and  the  same  is  hereby  confirmed,  and  that  the  said  William 
Burns,  substituted  trustee  as  aforesaid,  be  and  he  is  hereby  au- 
thorized, empowered  and  directed,  upon  the  receipt  of  the  said 

(74)  This  averment  need  only  be  inserted  in  cases  where  the  certificate 
is  required  by  local  rule  of  court. 

(75)  See  note  14,  ante. 


284  FORMS  OF  PETITION  AND  DECREE;. 

sum  of  $10,000,  to  convey  the  said  premises  to  the  said  John 
Clark.  The  title  of  the  purchaser  to  be  in  fee  simple,  indefeasible 
by  any  party  or  persons  having  a  present  or  expectant  interest  in 
the  said  premises,  and  unprejudiced  by  any  error  in  the  proceed- 
ings of  the  court,  the  said  William  Burns  first  entering  security 
in  the  sum  of  $20,000. 


Private  Sale  of  Interest  of  a  Lunatic. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 
Term,  19 — .     No. . 


ESTATE  OF  GEORGE  BROWN,  A  LUNATIC. 


To  the  Honorable  the  Judges  of  the  said  Court: 

The  petition  of  William  Burns,  committee  in  lunacy  of  George 
Brown,  a  lunatic,  the  said  George  Brown  being  the  owner  in  fee 
of  the  premises  hereinafter  described,78  respectfully  represents: 

(1)  That  Daniel  Brown  died  on  the  I5th  day  of  January,  1875, 
sized  in  fee  of  the  premises  hereinafter  described,  intestate,  un- 
married and  leaving  to  survive  him  a  son,  the  said  George  Brown, 
and  no  othed  issue  or  issue  of  a  deceased  child  him  surviving. 

(2)  That  the  said  premises  are  described  as  follows:   (here 
insert  description  of  premises). 

(3)  That  by  inquisition  proceedings  in  the  court  of  common 

pleas  of  the  County  of  ,  of  — • Term,  No.  ,  the 

said  George  Brown  was  duly  adjudged  a  lunatic,  and  your  peti- 
tioner was  duly  appointed  committee  of  his  person  and  estate. 

(4)  That  your  petitioner  has  contracted  to  sell  the  said  prem- 
ises to  John  Clark  for  $10,000,  by  agreement  of  sale  copy  whereof 
is  hereunto  annexed  marked  "Exhibit  A." 

(5)  That  it  will  be  to  the  interest  and  advantage  of  the  estate 
of  the  said  lunatic  that  the  property  should  be  sold  for  the  price 
aforesaid  because  the  property  is  dilapidated,  decaying,  in  bad 
need  of  repair  and  cannot  be  rented  to  advantage  without  the 
expenditure  of  a  considerable  sum  of  money.    The  gross  income 

from  the  property  for  the  last  three  years  has  been ,  the 

expenditures  for  water  rent,  taxes  and  repairs  has  been , 

(76)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  285 

and  the  net  annual  income  for  the  three  years  has  been . 

The  petitioner  can  by  investing  the  sum  of  $10,000  at  the  prevail- 
ing rates  of  interest  receive  a  larger  revenue  than  can  be  obtained 
by  renting  the  property  in  its  present  condition. 

(6)  That  the  said  sale  may  be  made  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held, 
and  without  the  violation  of  any  law  which  may  confer  immunity 
or  exemption  from  sale  or  alienation. 

(7)  That  notice  of  the  proposed  sale  has  been  given  to  the 
wife  (or  next  of  kin,  as  the  case  may  be),  of  the  said  George 
Brown,  and  she  has  signified  her  consent  to  the  said  sale  by  join- 
ing herein.77 

(8)  That  the  said  sum  of  $10,000  is  a  better  price  than  could 
be  obtained  at  public  sale. 

(9)  That  the  said  premises  are  assessed  for  taxation  for  the 

year ,  for  the  sum  of  $ ,  as  appears  by  the  certificate 

of  the  Board  of  Revision  of  Taxes  hereunto  annexed  marked 
"Exhibit  — ,"78 

Your  petitioner  therefore  prays  your  Honorable  Court  for  a 
decree  under  the  provisions  of  the  Act  of  April  18,  1853,  P.  L. 
5O3,78a  confirming  the  said  sale,  and  authorizing  him  to  carry  out 
the  same  by  conveying  the  premises  to  the  purchaser  in  fee  simple 
for  the  sum  of  $10,000,  so  that  he  may  have  a  title  indefeasible  by 
any  party  or  persons  having  a  present  or  expectant  interest  in  the 
said  premises,  and  unprejudiced  by  any  error  in  the  proceedings 
of  the  court. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the • — ,  on  consideration  of  the  fore- 
going petition  and  affidavits  thereunto  annexed,  and  on  motion  of 
Horace  Binney,  Esq.,  counsel  for  the  petitioner,  it  appearing  that 
the  wife  (or  next  of  kin,  as  the  case  may  be),  of  the  said  George 
Brown  has  signified  her  consent  to  the  said  sale  by  joining  herein, 

0 

(77)  Although  it  is  not  necessary  under  the  terms  of  the  act^to  give 
notice  to  the  wife  or  next  of  kin  in  the  case  of  proceedings  concerning 
the  interest  of  a  lunatic,  it  is  undoubtedly  much  better  practice  to  do  so, 
and  this  averment  is  therefore  inserted. 

(78)  This  averment  need  only  be  inserted  when  required  by  local  rule 
of  court. 

(783)  See  note  14,  ante. 


286  FORMS  OF  PETITION  AND  DECREE. 

and  it  further  appearing  that  the  will  be  to  the  interest  and  ad- 
vantage of  the  estate  of  the  said  George  Brown,  a  lunatic, 
that  the  premises  described  in  the  foregoing  petition,  to  wit, 

• — ,  should  be  sold  to  John  Clark  for  $10,000,  and  that 

the  said  sum  of  $10,000  is  a  better  price  than  could  be  obtained 
at  public  sale,  and  that  the  same  may  be  made  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held,  and  without  the  violation  of  any  law  conferring  immunity 
or  exemption  from  sale  or  alienation,  IT  IS  ORDERED  AND 
DECREED  that  William  Burns,  committee  of  the  estate  of 
George  Brown,  a  lunatic,  be  and  he  is  hereby  authorized  to  convey 
the  said  premises  to  the  said  John  Clark,  for  the  sum  of  $10,000, 
the  title  of  the  purchaser  to  be  in  fee  simple,  indefeasible  by  any 
party  or  persons  having  a  present  or  expectant  interest  therein, 
and  unprejudiced  by  any  error  in  the  proceedings  of  the  court; 
the  said  William  Burns  first  entering  security  in  the  sum  of 
$20,000. 


Form  for  Mortgage. 

IN  THE  ORPHANS'  COURT  FOR  THE  COUNTY  OF 
Term,  19 — .     No. . 


ESTATE  OF  DANIEL  BROWN,  DECEASED. 


The  petition  of  William  Burns,  guardian  of  Thomas  Brown, 
owner  in  fee  of79  the  premises  hereinafter  described,  respectfully 
represents : 

(1)  That  on  the  I3th  day  of  December,  A.  D.  1913,  your  peti- 
tioner was  duly  appointed  guardian  by  your  Honorable  Court  of 
the  estate  of  the  said  Thomas  Brown. 

(2)  That  Daniel  Brown  died  on  December  i,  1913,  intestate, 
unmarried,  and  leaving  to  survive  him  an  only  child,  Thomas 
Brown. 

(3)  That  the  said  Daniel  Brown  was  at  the  time  of  his  de- 
cease seized  in  fee  of  all  ALL  THAT  CERTAIN  (here  insert 
description). 

(4)  That  the  said  premises  are  subject  to  the  lien  of  debts  of 

(79)  See  note  10,  ante. 


FORMS  OF  PETITION  AND  DECREE.  287 

the  said  Daniel  Brown  not  of  record,  and  to  the  lien  of  a  mortgage 
of  $1,500  which  was  executed  by  the  said  Daniel  Brown  on  the 

day  of ,  recorded  in  the  County  of ,  in  Book 

— ,  page . 

(5)  That  the  said  Daniel  Brown  left  no  personal  estate,  and 
the  total  amount  of  his  debts  aggregate  about  $3,000. 

(6)  That  the  said  premises  are  worth  the  sum  of  $10,000,  as 
appears  by  affidavits  of  real  estate  experts  hereunto  attached. 

(7)  That  the  said  premises  are  assessed  for  taxation  for  the 

year ,  for  the  sum  of  $ ,  as  appears  by  the  certificate 

of  the  Board  Revision  of  Taxes  hereunto  annexed  marked  "Ex- 
hibit80 B." 

(8)  That  the  said  premises  are  improved  and  yielding  an  as- 
sured annual  revenue,  and  that  it  would  be  to  the  disadvantage  of 
the  said  minor  that  they  should  be  sold  for  the  debts  of  the  said 
Daniel  Brown,  as  they  are  likely  to  increase  in  value  in  the  future 
and  can  probably  be  kept  rented  permanently  at  a  profitable  figure. 
It  will  therefore  be  to  the  interest  and  advantage  of  the  said 
Thomas  Brown  that  your  petitioner  should  borrow  the  sum  of 
$4,500  to  be  secured  by  a  bond  and  mortgage  in  the  usual  form 
upon  the  said  premises,  the  proceeds  of  the  said  mortgage  to  be 
used  in  paying  off  the  said  mortgage  of  $1,500,  and  in  paying  the 
debts  of  the  said  Daniel  Brown. 

(9)  That  your  petitioner  has  arranged  to  borrow  from  John 
Kane  the  sum  of  $4,500  for  a  period  of  three  years,  with  interest 
payable  at  5%,  the  said  sum  to  be  secured  by  a  bond  and  mortgage 
on  said  premises. 

(10)  That  the  said  mortgage  may  be  created  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  property 
is  held,  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation. 

Your  petitioner  therefore  prays  your  Honorable  Court,  under 
the  provisions  of  the  Act  of  April  18,  1853,  P.  L.  503,"  for  a 
petition  authorizing  him  to  execute  a  mortgage  in  the  usual  form 
accompanied  by  a  bond  with  a  warrant  of  attorney  in  the  usual 
form  to  John  Kane  in  the  sum  of  $4,500,  to  be  secured  on  the  said 
premises,  and  that  the  title  of  the  mortgagee  shall  be  unprejudiced 


(80)  This  averment  need  only  be  inserted  in  jurisdictions  where  re- 
quired by  rule  of  court. 

(81)  See  note  14,  ante. 


288  FORMS  OE  PETITION  AND  DECREE. 

by  any  error  in  the  proceedings  of  the  court  and  indefeasible  by 
any  party  or  persons  having  a  present  or  expectant  interest  in 
the  premises. 

And  he  will  ever  pray,  etc. 

Decree. 

AND  NOW,  the ,  on  consideration  of  the  fore- 
going petition  and  affidavits  thereunto  annexed,  and  on  motion  of 
Joseph  Story,  Esq.,  counsel  for  the  petitioner,  it  appearing  that  it 
will  be  to  the  interest  and  advantage  of  the  said  Thomas  Brown 
that  his  guardian,  William  Burns,  be  authorized  to  borrow  of 
John  Kane  the  sum  of  $4,500  for  three  years  at  five  per  cent.,  the 
same  to  be  secured  by  bond  and  mortgage  on  the  premises  de- 
scribed in  the  foregoing  petition,  and  that  the  said  mortgage  may 
be  created  without  injury  to  any  trust,  charity  or  purpose  for 
which  the  same  is  held,  and  without  the  violation  of  any  law 
which  may  may  confer  an  immunity  or  exemption  from  sale  or 
alienation,  IT  IS  ORDERED  AND  DECREED  that  William 
Burns,  guardian  of  Thomas  Brown,  be  and  he  is  hereby  author- 
ized and  empowered  to  borrow  the  sum  of  $4,500  from  John  Kane 
for  three  years  at  five  per  cent.,  and  secure  the  same  by  executing 
a  mortgage  on  the  premises  described  in  the  foregoing  petition 
(here  refer  to  premises),  accompanied  by  a  bond  and  warrant  of 
attorney  in  the  usual  form,  the  title  of  the  said  John  Kane  to  be 
indefeasible  by  any  party  or  persons  having  a  present  or  expectant 
interest  in  the  premises,  and  unprejudiced  by  any  error  in  the 
proceedings  of  the  court;  the  said  William  Burns  first  entering 
security  in  the  sum  of  $9,000. 


TABLE  OF  CASES 


Acklin's  Est,  237  Pa.  528 166 

Allen's  Est.,  1 1  Phila.  48,  32  L.  I.  417  165 

Anders's  Est.,  4  W.  N.  C.  382   127 

Anderson  v.  Devlin,  17  Phila.  i,  34  L.  I.  US 46 

Armington's  Est,  I  Phila.  444,  10  L.  I.  1 15 168 

Armstrong's  App.,  68  Pa.  409 167 

Ash's  Est.,  12  D.  R.  72,  28  Pa.  C.  C.  109  46 

Backenstoss  v.  Stahler's  Admin.,  33  Pa.  251  162, 184, 188 

Badder's  Est.,  5  Super.  Ct.  465  214 

Baily's  App.,  32  Pa.  40,  sub  nom.  Bailey's  App.,  2  Gr.  225  44 

Banes  v.  Gordon,  9  Pa.  426   179 

Barger  v.  Cassidy,  4  Phila.  324,  18  L.  I.  316 199 

Barndt's  Est,  23  D.  R.  226  161 

Barr  v.  Weld,  24  Pa.  84 in 

Barton  v.  Benson,  126  Pa.  431  168 

Bashore  v.  Whisler,  3  Watts.  490 173 

Belle  v.  Mateer's  Est.,  19  D.  R.  929 150 

Bell's  App.,  66  Pa.  498  26 

Bennett  v.  Hayden,  145  Pa.  586  73,  194 

Bickley's  Adm.  v.  Biddle,  33  Pa.  276 160,  175,  211 

Biggert's  Est.,  20  Pa.   17    179 

Bindley's  App.,  69  Pa.  295 163 

Blake's  Est.,  134  Pa.  240  148, 149 

Bloodhart's  Est,  2  Pa.  C.  C.  476 105 

Bodder's  Est.,  No.  I,  30  Pa.  C.  C.  417,  13  D.  R.  471  168,  176 

Bodder's  Est.,  No.  2,  30  Pa.  C.  C.  417,  13  D.  R.  471  170 

Bodder's  Est,  31,  Pa.  C.  C.  46,  14  D.  R.  53 170 

Bopp's  Est,  18  York  161    172, 181 

Bowers's  App.,  84  Pa.  311  214 

Bowker's  Est.,  12  Phila.  161,  35  L,.  I.  456 26 

Boyd  v.  Wingate,  13  W.  N.  C.  56,  14  L.  Bar  205 85 

Boyle's  Est,  2  Kulp  169  172 

Breese's  Est.,  2  Kulp  62  165 

Breil's  App.,  24  Pa.  511    165 

Brendle  v.  Cong.,  33  Pa.  415   1 1  r 

Brennan's  Est.,  220  Pa.  232  188 

Bricker's  Est.,  22  Super.  Ct.  12 , . , 99 

Bridesburg  Land  Co.,  Pet.  of,  7  Phila.  436,  27  L.  I.  317 13, 156 

Brittain's  Est.,  28  Super.  Ct.  144 161, 168 

Brock  v.  Steel  Co.,  203  Pa.  249    29,33,40,160,175 

Brooke's  Est,  214  Pa.  46,  15  D.  R.  137  17, 88 ,113 

Brooks's  Est.,  3  Phila.  516,  16  L.  I.  372 143 

289 


290  TABLE  OF  CASES. 

Brown's  App.,  68  Pa.  53  32, 165, 167 

Brownsville  Bank's  App.,  96  Pa.  347 211 

Brubaker's  App.,  65  Pa.  317  148 

Buchanan  v.  Corson,  51  Super.  Ct.  558 75 

Bucknor's  App.,  4  Walk.  331   214 

Burke's  Est,  15  Pa.  C.  C.  9,  3  D.  R.  384,  34  W.  N.  C.  359 69,  156 

Burkhart's  App.,  i  Mona.  474,  aff.  Burkhardt's  Est,  6  Pa.  C.  C.  374        104 

Burton's  App.,  57  Pa.  213 37,  39,  "9 

Burton's  Est.,  16  Pa.  C.  C.  289,  4  D.  R.  106  26,  45 

Butt's  Est.,  20  Lane.  L.  R.  41  163 

Calhoun's  Pet.,  3  D.  R.  232 „        55 

Campbell's  Est.  (No.  i),  22  Super.  Ct.  430 210 

Carey's  Est.,  9  Kulp  336  34 

Carpenter's  Est,  17  D.  R.  170 18 

Carr's  Est.,  17  D.  R.  297 150 

Carrier's  App.,  79  Pa.  230  17 

Carroll's  Est.,  2  Kulp  37 166 

Carswell's  Pet,  I  Phila.  521,  12  L.  I.  14 21, 45, 46,  60, 169 

Carver's  App.,  89  Pa.  276  210 

Charlton's  Est.,  12  Phila.  102,  35  L.  I.  194 26, 136 

Chase  v.  Fisher,  239  Pa.  545  166 

Church  v.  Gray,  198  Pa.  321 119 

Church  v.  Williams,  5  Pa.  C.  C.  641  53 

Church's  Pet,  166  Pa.  43 81 

Church's  Pet,  i  Lack.  L.  N.  89  81, 119 

Cierlinski  v.  Railways,  225  Pa,  312  196 

Clark's  Est.,  38  Pa.  C.  C.  302 166 

Clark's  Est.,  195  Pa.  520,  10  Super.  Ct.  423,  aff.  7  D.  R.  9,  20  Pa. 

C.  C.  439  142 

Claypoole's  Est.,  15  Pa.  C.  C.  283,  3  D.  R.  455  160 

Clothier's  Pet.,  see  Pierce's  Case. 

Cobleigh's  Est,  23  Super.  Ct.  271,  8  Lack.  L.  N.  107 161 

Cochran  v.  Cochran,  127  Pa.  486 85 

Commonwealth  v.  American  Bonding  Co.,  25  Super.  Ct.  145  142 

Commonwealth  v.  Hilgert,  55  Pa.  236  142 

Commonwealth  v.  McDonald,  170  Pa.  221  142 

Commonwealth  v.  McGovern,  4  Super.  Ct.  598 142 

Commonwealth  v.  Magee,  24  Super.  Ct.  329 142 

Commonwealth  v.  Messinger,  237  Pa.  i   142 

Commonwealth  v.  Pool,  6  Watts  32  107 

Commonwealth  v.  Trust  Co.,  16  Super.  Ct.  570 142 

Commonwealth  v.  Winters,  4  W.  N.  C.  346,  12  Phila.  226,  34  L.  I.  338      142 

Corbett's  Est.,  10  D.  R.  59,  48  Pitts.  L.  J.  101  168 

Corr's  Est.,  29  Pa,  C.  C.  276,  12  D.  R.  788 25,  60, 81, 157 

Cotton,  Trust  Est.  of  Libbens  S.,  46  Pitts.  L.  J.  203,  21  Pa.  C.  C.  451        35 

Crawford  v.  Forest  Oil  Co.,  208  Pa.  5 91 

Crawford's  Est.,  221  Pa.  131,  10  Del.  Co.  387  18,  23,  106 

Cromrath's  Est.,  I  Wood.  103   164 


TABLE  OF  CASES.  291 

Crosson's  Est,  125  Pa.  380,  6  Pa.  C.  C.  14  163, 211 

Culbertson's  Est.,  38  Pa.  C.  C.  491,  20  D.  R.  1081  208 

Cunnius  v.  School  District,  198  U.  S.  458,  25  Sup.  Ct.  Rep.  721,  49 
L.  ed.  1125,  aff.  206  Pa.  469,  which  reversed  21  Super.  Ct.  340, 

25  Pa.  C.  C.  17 15, 135, 137 

Curtis  v.  Longstreth,  44  Pa.  297  84 

Cushman  v.  Church,  162  Pa.  280,  revers.  14  Pa.  C.  C.  26,  188  Pa. 

438,  aff.  6  D.  R.  607,  s.  c.  7  Del.  Co 41, 81 

Davis's  App.,  60  Pa.  118  150 

Dawson-Springer  v.  Ewing,  16  S.  &  R.  371  173 

Dean's  App.,  87  Pa.  24  169 

Dech  v.  Gluck,  47  Pa.  403  209 

DeHaven's  App.,  106  Pa.  612  170 

Demmy's  App.,  43  Pa.  155   180 

Derr's  Est.,  203  Pa.  96,  10  Kulp  438 23,  169 

Devlin  v.  Comm.,  101  Pa.  273   15 

Diller  v.  Young,  2  Yeates  261   152 

Dively's  Est.,  i  Lane.  L.  R.  359 171 

Dixey's  Exec.  v.  Laning  &  Sill,  49  Pa.  143 143, 190 

Donnelly  v.  Byers,  234  Pa.  339 25,  26, 107, 173 

Dorrance's  Est.  9  York  69 114 

Dorrance's  Est.,  13  D.  R.  664,  n  Kulp  255  114 

Douty's  Est.,  196  Pa.  432  214 

Drayton,  Est.  of,  6  Phila.  157,  23  L.  I.  133 169 

Dull  v.  Slater,  31  Super.  Ct.  488 170, 209 

Duncan's  Est.,  I  W.  N.  C.  14  176 

Dundas's  App.,  64  Pa.  325  167 

Eckert,  Est.  of,  12  Phila.  93,  5  W.  N.  C.  451,  35  L.  I.  193 150 

Eichelberger  v.  Barnitz,  9  Watts  447  85 

Elliott,  Ex  parte,  5  Whart.  524 52 

Elsey  v.  McDaniel,  95  Pa.  472 75 

Erb  v.  Enb,  9  W.  &  S.  147 179 

Ervine's  App.,  16  Pa.  264  17 

Everman's  App.,  67  Pa.  335  214 

Fahrig  v.  Schimpff,  199  Pa.  423  173 

Farabee's  Est.,  29  Pa.  C.  C.  334 181 

Farmers'  Mutual  Ins.  Co.  v.  Graybill,  74  Pa.  17  179 

Fell's  Est.,  14  Phila.  248,  9  W.  N.  C.  382,  38  L.  I.  6 21,  59 

Ferree  v.  Comm.,  8  S.  &  R.  312 152, 179 

Fidelity  Trust  Co.,  Application  of,  16  Phila.  645,  40  L.  I.  484 72 

Fish's  Est.,  16  Phila.  373,  41  L.  I.  263  168 

Forney's  Est.,  3  Kulp  29    166 

Foster's  App.,  74  Pa.  391   148, 151 

Fox's  Est.,  18  Pa.  C.  C.  114,  2  Lack.  L.  N.  292 91 

Fox  v.  Mensch,  3  W.  &  S.  444 173 

Fox  v.  Winters,  4  Rawle  174 ". 190 

Freeman's  Est,  181  Pa.  405,  21  D.  R.  I  14, 17,  50 ,123 

Freeman's  Est.,  18  D.  R.  194  136 


292  TABLE  OF  CASES. 

Freker  v.  Berg,  193  Pa.  442 24,  32, 136 

Frick  Coke  Co.  v.  Laughead,  203  Pa.  168 184 

Fulton's  Est.,  51  Pitts.  L.  J.  257  40,148 

Funck's  Est,   16  Super.   Ct.  434   30,39,119,133,148,166 

Funston's  Est,  24  Pa.  C.  C.  135  .. 163 

Gable  v.  Whiteside,  242  Pa.  188 126 

Gallaher  v.  Collins,  7  Watts  552  196 

Camber's  Est,  I  W.  N.  C.  85  34, 91 

Gamble  v.  Woods,  53  Pa.  158  214 

Gamble's  Est.,  9  D.  R.  691   33,  89, 169 

George  v.  Trust  Co.,  234  Pa.  300 177 

Gheen's  Est.,  12  Phila.  123,  35  L.  I.  234 169 

Gheen's  Est.,  5  W.  N.  C.  319  169 

Gillespie's  Est.,  10  Watts  300  172 

Gilmore  v.  Rodgers,  41  Pa.  120,  9  Pitts.  L.  J.  209,  sub  nom.  Gilmore 

v.  Rogers,  19  L.  I.  28 13, 63,  67, 68, 174,  176 

Glentworth's  Est.,  17  D.  R.  292   

Goddard's  Est,  198  Pa.  454,  aff.  9  D.  R.  703 21, 114,  115, 118, 124,  148 

Goldsmilth's  Est.,  13  Phila.  389,  37  L.  I.  465 71 

Graham's  Est,  14  W.  N.  C.  31   33, 66 

Gray's  Est.,  52  Pitts.  L.  J.  195   152 

Green's  Est.,  5  Pa.  C.  C.  605,  19  Phila.  55,  45  L.  I.  174,  5  L,anc. 

L.   R.   217    107 

Green's  Est.,  I  Del.  Co.  521   100 

Greenawalt  v.  Greenawalt,  71  Pa.  483   98 

Greenawalt's  Est.,  5  D.  R.  314,  2  Dauph.  Co.  358,  sub  nom.  Fox's 

Est.,  18  Pa.  C.  C.  114,  2  Lack  L.  N.  292 91 

Greenough  v.  Small,  137  Pa.  132 179 

Greenawalt's  App.,  37  Pa.  95,  Luz.  L.  Obs.  243,  sub  nom.  Greena- 
walt's App.,  17  L.  I.  404, 14,  30,  34,  98,  102,  105,  143 

Grew's  Est,  14  D.  R.  225,  31  Pa.  C.  C.  530,  6  Lack.  Jur.  166 165 

Grier's  App.,  101  Pa.  412,  40  L.  I.  90,  30  Pitts.  L.  J.  224 184 

Griffiths  v.  Cope,  17  Pa.  96  in 

Grim's  App.,  33  Super.  Ct.  587  214 

Grindrod's   Est,    140   Pa.    161    88,190,193 

Grove's  Est.,  2  Wood.  182  166 

Grubjb  v.  Galloway,  203  Pa.  236   195 

Grubb  v.  Steel  Co.,  203  Pa.  255 40 

Gumbert's  App.,  no  Pa.  496  60,  108 

Guthrie's  App.,  37  Pa.  9  84 

Hackett  v.  Milnor,  156  Pa.  i  123 

Halderman's  App.,  104  Pa.  251   73, 198 

Halderman  v.  Young,  107  Pa.  324  73,  198 

Hamilton's  Est.,  51  Pa.  58   164, 172 

Hammill's  Est,  234  Pa.  438   170 

Hancock's  Est.,  9  D.  R.  231,  23  Pa.  C.  C.  592 161 

Handbest's  Est.,  15  D.  R.  234 161 

Hannum's  App.,  2  Penny.  103  168 


TABLE;  OF  CASES.  293 

Harmstead's  Est.,  18  D.  R.  786 136 

Harrington  v.  Stivanson,  210  Pa.  10 177 

Haslage's  App.,  37  Pa.  440  214 

Hazlett's  Est.,  137  Pa.  587  167 

Heffner's  App.,  119  Pa.  462,  21  W.  N.  C.  249,  39 

Helf rich  v.  Weaver,  61  Pa.  385  148 

Hepburn's  App.,  65  Pa.  468 148 

Herr's  Est,  12  Pa.  C.  C.  622   165 

Herr  v.  Groff,  34  Pa.  C.  C.  65 208 

Hess's  App.,  i  Watts  255  214 

High's  Est.,  136  Pa.  222  88, 05 

Hinkson  v.  Lees,   181   Pa.  225    28, 92, 05 

Hirsh's  Est.,  17  W.  N.  C.  28,  17  Phila.  512,  42  L.  I.  454 130 

Hirst's  Est.,  147  Pa.  319,  aff.  28  W.  N.  C.  212 54,  72, 115,  152, 154 

Hollins's  Est.,  16  D.  R.  441  51, 115, 123 

Holmes'  App.,  108  Pa.  23   182 

Holmes's  App.,  53  Pa.  339  13,  150, 151 

Homer's  Est.,  20  Pa.  C.  C.  458,  7  D.  R.  63,  15  Lane.  L.  R.  335 153 

Hoopes  v.  Price,  17  Phila.  98,  41  L.  I.  114 148 

Horn's  Est,  10  York  156   171 

Hostetter's  Est.,  222  Pa.  197 171 

Hotchkiss  v.  Homan,  25  Pa.  C.  C.  314 170 

Hough's  Est.,  3  D.  R.  187 150 

Howe's  Est.,  14  Pa.  C.  C.  574,  3  D.  R.  267 175,  211 

Howells  v.  Wery,  40  Pa.  C.  C.  586 75 

Hower's  App.,  55  Pa.  337  102, 156 

Hubley's  Est,  16  Phila.  327,  41  L.  I.  66 26 

Huckle  v,  Phillips,  2  S.  &  R.  4  190,  191 

Huff,  Ex  parte,  2  Pa.  227  52 

Hunsworth's  Est.,  22  D.  R.  544  131 

Ike's  Est,  200  Pa.  202   168 

Jacobs'  App.,  23  Pa.  477 162,  182 

Jacoby  v.  McMahon,  174  Pa.  133,  189  Pa.  i  101, 197 

Jacoby's  Est.,  201  Pa.  442 18 

Jayne's  Est.,  2  W.  N.  C.  536 162, 169 

Jermon  v.  Lyon,  81  Pa.  107  100,  187,  206 

Johnson's  App.,  114  Pa.  132,  18  W.  N.  C.  205,  43  L.  I.  426,  3  Lane. 

L.  R.  376  175 

Johnson's  Est,  15  Phila.  543,  39  L.  I.  160  172 

Kayser's  Est,  9  D.  R.  360  180,  205 

Keim's  App.,  125  Pa.  480 88,  95 

Keller  v.  Lees,  176  Pa.  402  91, 175 

Kelly's  Est.,  17  D.  R.  647  170 

Kennelly's  Est,  17  Phila.  99,  41  L.  L  114 57,  72 

Kerner's  Est.,  13  D.  R.  311,  30  Pa.  C.  C.  175 17,  35, 123 

King's  Est.,  2  Leh.  Val.  L.  R.  229 172 

King  v.  Gas  Coal  Co.,  204  Pa.  628 200 

King  v.  Gunnison,  4  Pa.  171  164, 173 


294  TABLE  of  CASES. 

Kinsel  v.  Ramey,  87  Pa.  248  84 

Kiskaddon  v.  Dodds,  21  Super.  Ct.  351  102 

Kline's  App.,  39  Pa.  463  157, 176 

Kling  v.  Hummer,  2  P.  &  W.  349  122, 123 

Klingensmith  v.  Bean,  2  Watts  486 190 

Kneass's  App.,  31  Pa.  87  17 

Kortright's  Est.,  237  Pa.  143,  21  D.  R.  248  79 

Kramer's  Est.,  37  Pa.  C.  C.  520 55 

Kreamer  v.  Fleming,  191  Pa.  534  211 

Kreimendahl  v.  Neuhauser,  13  Super.  Ct.  606,  aff.  8  D.  R.  558,  47 

Pitts.  L.  J.  60  63, 144,  145, 199 

Kurtz's  Est.,  16  Lane.  L.  R.  205  163 

Lambrecht's  Est.,  22  W.  N.  C.  24 ". 105 

Landreth  v.  Howell,  24  Super.  Ct.  210 176 

Larimer,  Lessee  of,  v.  Irwin,  4  Binney  104  190,  191 

Laughlin's  Est.,  23  W.  N.  C.  544 212 

Law's  Est.,  7  Pa.  C.  C.  605 179 

Law's  Est.,  6  Pa.  C.  C.  647  181 

Lawrence  and  Appleton's  Est.,  169  Pa.  185,  s.  c.  14  Pa.  C.  C.  662, 

3  D.  R.  356,  35  W.  N.  C.  406 46,  47 

Leazure  v.  Hillegas,  7  S.  &  R.  3113  80 

Lerch's  Est,  2  Leh.  Val.  L.  R.  348 172 

Leedom  v.  Lormbaert,  80  Pa.  381  115,  143 

Lee's  Est.,  18  Phila.  2,  42  L.  I.  488,  17  W.  N.  C.  no 30, 33, 34,  46 

Leshey  v.  Gardner,  3  W.  &  S.  314 179 

Levengood's  Est.,  38  Super.  Ct.  491  203 

Lindsay's  Pet.,  2  Del.  Co.  197  127 

Linn  v.  Alexander,  59  Pa.  43  85 

Lockhart  v.  John,  7  Pa.  137 143, 190 

Lombaert's  App.,  99  Pa.  580  46,  207 

Loomis  v.  Loomis,  27  Pa.  233  159, 160 

Loucks's  Est.,  203  Pa.  278,  s.  c.  sub  nom.  Myers's  App.,  16  York 

6,  aff.  15  York  181  33, 92,  169 

Loughery's  Est.,  12  D.  R.  386,  28  Pa.  C.  C.  632 69 

McAlpin's  Est,  i  Phila.  440,  10  L.  I.  114  32, 33 

McBride's  Est.,  23  Pa.  C.  C.  544,  9  D.  R.  216 165 

McCaffrey  v.  Gibney,  223  Pa.  368  26,89,90,170,174 

McCarroll's  Est.,  2  W.  N.  C.  248 164 

McCarron's  Est.,  15  W.  N.  C.  485  149 

McClane  v.  McClane,  207  Pa.  465 160,  161 

McClurg's  Est,  22  Pitts.  L.  J.  133  36,43,114 

McClurg*s  Est.,  4  D.  R.  655 150,  209 

McCormick's  App.,  57  Pa.  54  176 

McDonald  v.  Campbell,  2  S.  &  R.  473 190 

McFarson's  App.,  n  Pa.  503  126 

McGhee  v.  Hoyt,  106  Pa.  516,  41  L.  I'.  399  177, 200 

McGuirk  v.  Friel,  9  Del.  Co.  22  115, 194 

McKce  v.  McKee,  14  Pa.  231  126, 191 


TABLE  OF  CASKS.  295 

McPherran's  Est.  (No.  i),  212  Pa.  425  167 

McPherson  v.  Cunliff e,  1 1  S.  &  R.  422 192 

McRee's  Est,  6  Phila.  75,  22  L.  I-  389  165, 167 

Maple  v.  Kussart,  53  Pa.  348 197,  200 

Mehrten's  Est.,  41  Pa.  C.  C.  169 207 

Mercer  Home  v.  Fisher,  162  Pa.  239 21 

Mercer  Home,  Fisher's  App.,  162  Pa.  232,  aff.  9  Montg.  Co.  171,  s. 

c.  4  North.  Co.  103,  3  Lack.  Jur.  367  39, 118, 160 

Merrell  v.  Merrell,  5  Pa.  C.  C.  531,  5  Kulp  125,  6  Lane.  L.  R.  17..  13,  127 

Merritt  v.  Whitlock,  200  Pa.  50  177 

Messinger  v.  Kintner,  4  Binney  97 194 

Metz's  Est,  14  York  136  165 

Miller's  App.,  84  Pa.  391   161 

Miller's  Est.,  8  York  7 172 

Miller's  Est,  4  D.  R.  328,  16  Pa.  C.  C.  449 32, 51,  58 

Miller's  Est.,  5  Kulp  205  166 

Miller  v.  Spear,  21  W.  N.  C.  554  105,175 

Miles  v.  Diven,  6  Watts  148 173 

Miles  v.  Commonwealth,  2  Walk.  64 142 

Mitchell  v.  Kintzer,  5  Pa.  216  168 

Mitchell  v.  Spaulding,  20  Super.  Ct  296   73, 193 

Moore's  Est,  9  Phila.  326,  s.  c.  30  L.  I.  176,  5  Leg.  Gaz.  165 98,  156 

Moorhead  v.  Wolff,  123  Pa.  365,  23  W.  N.  C.  167,  36  Pitts.  L.  J. 

352,  46  L.  I.  261  33, 60,  88, 90, 91, 95, 204,  205, 207 

Morgan's  App.,  no  Pa.  271    160,  199 

Morgan's  Est,  9  Pa.  C.  C.  119 161 

Morris  v.  Fisher,  8  D.  R.  161 84 

Morrison  v.  Nellis,  115  Pa.  41,  19  W.  N.  C.  20,  44  L.  I.  187,  34  Pitts. 

L.  J.  274,  14  Lane.  L.  R.  96  30,69,194,230 

Morton's  Est.,  201  Pa.  269 18 

Moulton's  Est.,  15  Phila.  579,  39  L.  I.  412  172 

Moyer's  Est.,  n  Pa.  C.  C.  528,  i  D.  R.  600,  9  Lane.  L.  R.  203,^3 

North.  Co.  189 106 

Muller's  Est.,  see  Schug's  App. 

Murphy's  App.,  8  W.  &  S.  165  169 

Murphy's  Est.,  15  Phila.  530,  39  L.  L  1 18 165 

Murray's  Est.,  234  Pa.  520   88,  96, 150, 153 

Murtland's  Est.,  16  Phila.  222,  40  L.  I.  120 172 

Mussleman's  App.,  65  Pa.  480   26, 160 

Myers'  Est.,  I  D.  R.  140,  n  Pa.  C.  C.  194,  30  W.  N.  C.  175 40, 122 

Myer's  Est.,  9  Pa.  C.  C.  439 168 

Nauman  v.  Weidman,  182  Pa.  263,  40  W.  N.  C.  509,  37  Atl.  Rep. 

863,  14  Lane.  L.  R.  305  , , 81,  119 

Nimick's  Est.,  179  Pa.  591    175 

Nowr/s  Est.,  20  Pa.  C.  C.  76 212 

O'Brian  v.  Wiggins,  14  Super.  Ct.  37,  17  Lane.  L.  R.  233,  14  York 

54,  aff.  8  D.  R.  481,  22  Pa.  C.  C.  236,  16  Lane.  L.  R.  143  .  .174,  207, 208 
Orwig's  Est.,  19  Phila.  158,  7  Pa.  C.  C.  71,  46  L.  1-99 14,  45,  69,  99, 103 


296  TABLE  of  CASES. 

Owens'  Est.,  15  Pa.  C.  C.  196,  3  D.  R.  331 17,  28,  148 

Owens'  Pet.,  3D.  R.  328 21,  93, 113 

Overdeer  v.  Updegraff,  69  Pa.  no  177 

Packer's  Est.,  7  Phila.  473,  26  L.  I.  380,  3  Brewst.  527  63,  70 

Painter  v.  Henderson  7  Pa.  48  190 

Palairet's  App.,  67  Pa.  479  14 

Patchin  v.  Seward  Coal  Co.,  226  Pa.  159 74, 196 

Paul  v.  Shallcross,  2  Rawle  326 170 

Paul  v.  Squibb,  12  Pa.  296 201 

Pennock's  App.,  14  Pa.  446  171 

Penn-Gaskell's  Est.  (No.  i),  208  Pa.  342 208 

Penn-Gaskell's  Est.  (No.  2),  208  Pa.  346  118 

Penn  Square  Bldg.  Assn.  App.,  Si%  Pa.  330  172, 201, 205 

Perrine  v.  Kohr,  20  Super  Ct.  36 193 

Phila.'s  Pet.,  2  Brewst.  462  18 

Phila.  v.  Reeder,  30  Pa.  C.  C.  375 209 

Phillips's  Est.,  12  D.  R.  690 48 

Phillips  v.  Church,  225  Pa.  62  41, 81 

Phillips  v.  Crist,  33  Super.  Ct.  445  196 

Pierce's  Case,  7  Phila.  475,  26  L.  I1.  13,  sub  nom.  Clothier's  Pet.,  3 

Brewst.  254  54,  67, 102 

Potts  v.  Wright,  82  -Pa,  498,  34  L.  I.  148,  24  Pitts.  L.  J.  125,  5  Law 

Times,  O.  S.,  35,  9  Lane.  Bar  14  44, 143, 178, 191 

Price  v.  Taylor  28  Pa.  95 84 

Pringle  v.  Rogers,  193  Pa.  94 200 

Ramsey's  App.,  4  Watts  71  210 

Ranck's  Est.,  n  Lane.  L.  R.  233  165 

Randolph's  App.,  5  Pa.  242  162,  207 

Ray's  Est.,  24  Pa.  C.  C.  366,  17  Montg.  Co.  15,  48  Pitts.  L.  J.  (O. 

S.)  244,  14  York  145  150 

Reed  v.  Lukens,  44  Pa.  200 181 

Reed  v.  Palmer,  53  Pa.  379  21,  67, 173 

Reel's  Pet.,  32  Pa.  C.  C.  200 161 

Reilly's  Est.,  13  Phila.  201,  36  L.  I.  49  45 

Reilly's  Est.,  200  Pa.  288 18 

Reinhart  v.  Lantz,  37  Pa.  488 84 

Rham  v.  North,  2  Yeates  117  190 

Rhoades's  Est.,  4  W.  N.  C.  527  32, 34, 40, 88, 113 

Richards  v.  Rote,  68  Pa.  248 194 

Richter  v.  Fitzimmons,  4  Watts  251  173 

Rigg  v.  Schweitzer,  170  Pa.  549,  37  W.  N.  C.  152  161 

Ringler's  Est.,  i  Wood.  214  164 

Robb  v.  Mann,  1 1  Pa.  300  173,  183 

Robinson's  App.,  62  Pa.  213  214 

Robinson  v.  Clancy,  68  Pa.  89 214 

Rogers's  Est.,  185  Pa.  428 121 

Rogers's  Est.,  16  W.  N.  C.  228  18 

Ross's  Est.,  18  D.  R.  429  159, 210 


of  CASES.  297 

Rowe's  Est,  1 1  Kulp  32  210 

Ryan's  Est.,  8  Pitts.  L.  J.  25  164 

Sackett  v.  Twining,  18  Pa.  199  142,  173 

Sager  v.  Mead,  171  Pa.  349 195 

Sawyers  v.  Hicks,  6  Watts  76   142 

Saxton  v.  Mitchell,  78  Pa.  479 108 

Schaffer's   Est.,   i   Wood.  387    122 

Schug's  App.,  14  W.  N.  C.  49,  41  L.  I.  45 171 

Schur's  App.,  17  W.  N.  C.  140,  i   Sadler  355,  2  Atl.  336,  i  Cent. 

888,  4  East.  846,  aff.  Muller's  Est.,  16  Phila.  382,  41  L.  I.  274,  . .       167 

Schwartz's  Est,  12  Phila.  71,  35  L.  I.  153 171 

Scott  v.  McNeal,  154  U.  S.  34,  14  Sup.  Ct.  Rep.  1108,  38  L.  ed.  896. .         15 

Scott's  Est.,  4  Phila.   178,  27  L.  I.  4   165,166 

Seebold  v.   Shitler,  34  Pa.  133    in 

Seigers'  Est.,  19  W.  N.  €.404  69 

Seif  v.  Krebs,  239  Pa.  423   81, 112 

Selin  v.  Snyder,  11  S.  &  R.  319,  7  S.  &  R.  166 194,  200 

Sellers  Church's  Pet,  139  Pa.  61    119 

Sener  v.  Ephrata  Boro.,  176  Pa.  80  220 

Serrill's  Pet.,  9  D.  R.  755  55 

Sharp's  Pet.,  6  Phila.  153,  23  L.  I.  412  21,  32,  34,  no,  114, 117 

Sheetz's  Est.,  12  D.  R.  372,  29  Pa.  C.  C.  14,  17  York  44  26,  30 

Shepherd's  Est,  8  Pa.  C.  C.  520  55, 154 

Sheridan's  Est.,   10  Kulp   157   168 

Smith's  Est.,  207  Pa.  604   14,  15  30  33, 92, 169 

Smith's  Est.,  8  Lack.  L.  N.  368  207 

Smith's  Est,   188  Pa.  222   43, 168, 179 

Smith's  Est.,  53  Pitts.  L.  J.  136  154 

Smith  v.  Rilbblett,  233  Pa.  300 198 

Smith  v.  Schwarz,  209  Pa.  79   24,  115,  193 

Smith  v.  Townsend,  32  Pa.  434,  16  L.  I.  92  14, 24,  89 

Smith  v.  Wildman,  178  Pa.  245,  194  Pa.  294  198 

Smyth  v.  Neill,  I  W.  N.  C.  43    222 

Snodgrass's  App.,  96  Pa.  420  214 

Snyder,  Lessee  of,  v.  Snyder,  6  Binney  483  190,  200 

Snyder  v.  Markel,  8  Watts  416   100 

Snyder's  Est.,  29  Pa.  C.  C.  465,  30  Pa.  C.  C.  614,  7  Dauph.  Co.  287..       166 

Souders'  Est.,  20  Lane.  L.  R.  231   163 

Spangler's  Est.,  12  York  20 124 

Spencer  v.  Jennings,  114  Pa.  618,  123  Pa.  184,  139  Pa.  198,  19  W. 
N.  C.  to,  44  L.  I.  230,  34  Pitts.  L.  J.  243,  23  W.  N.  C.  43,  46 

L.  I.  158,  36  Pitts.  L.  J.  227 27,  47,  60,  101,  103,  105,  131,  149,  192 

Stadleman's  Est.,  23  D.  R.  403  21 

Stallman's  App.,  38  Pa.  200  119 

Steel  v.  Ellmaker,  11  S.  &  R.  86  171 

Steen's  Est.,  175  Pa.  299,  17  Pa.  C.  C.  201  209 

Stevenson's  Est.,  186  Pa.  262,  4  Super.  Ct.  46,  17  Pa.  C.  C.  312,  5 

D.  R.  5    31,46,47 

Stevenson  v.  Scott,  188  Pa.  234  179 

20 


298  TABLE  OF  CASES. 

Stewart  v.  Moody,  4  Watts  169  142 

Stoughton,  App.  of  88  Pa.  198  49,  50 

Strange  v.  Austin,  134  Pa.  96,  aff.  7  Pa.  C.  C.  128 179 

Swan's  Est.,  238  Pa.  430  104 

Swift  v.  Harbison-Walker  R.  Co.,  228  Pa.  584  21,89,196 

Tanners'  Est,  218  Pa.  361  168 

Taylor's  Est.,  17  D.  R.  692  175 

Taylor  v.  Hoyt,  2  Mona.  206,  15  Atl.  Rep.  892 137, 192 

Tempkton  v.  Lehigh  &  Wilkes-Barre  Coal  Co.,  50  Super.  Ct.  341  . .  191 

Terry's  Est.,  13  Phila.  208,  36  L.  I.  461  181 

Thomas's  Est,  n  D.  R,  290 30,  51,  131 

Thompson  v.  Rogers,  67  Pa.  39 44, 183, 188 

Thorn's  App.,  35  Pa.  47  141, 143 

Titzell  v.  Cochran,  7  Sad.  Cases  15  84 

Tomlinson's  App.,  90  Pa.  224 211 

Tomlinson  v.  Trenton,  &c.,  R.  R.  Co.,  31  Pa.  C.  C.  81  177, 183 

Torrance  v.  Torrance,  53  Pa.  505 198 

Truby  v.  Steele,  45  Super.  Ct.  152 198 

Tubb's  Est,  4  D.  R.  325  176 

Ulrich's  Est.,  14  Phila.  243,  38  L.  1.  5  137 

Ulrich's  App.,  2  Penny.  455  60 

Updike's  Est,  18  D.  R.  982  170 

Vandever  v.  Baker,  13  Pa.  121  173 

Van  Dusen's  Est.,  11  Pa.  C.  C.  201,  I  D.  R.  156,  29  W.  N.  C.  573  ...  17,  34 

Veihdorfer's  Est,  26  Pa.  C.  C.  317  170 

Wagner's  App.,  89  Pa.  303  63, 88 

Wainwright's  Est.,  n  Phila.  147,  33  L.  I.  280,  3  Pitts.  Law  Times 

(O.  S.)  95  107 

Walker's  Est,  25  Super.  Ct.  256 214 

Watt  v.  Scott,  3  Watts  79 159 

Weaver's  Est,  2  Lane.  L.  R.  114 153 

West  v.  Cochran,  104  Pa.  482,  sub  nom.  West  v.  Cochrane,  41  L.  I. 

330,  31  Pitts.  L.  J.  373  • 46,  67, 104,  105, 191 

Westhafer  v.  Koons,  144  Pa.  26 60, 89,  oo,  91, 175 

Whiteman's  Est,  13  Phila.  249  171 

Willard's  App.,  65  Pa.  265,  36  L.  I.  286  18,  21 

Williams's  Est,  140  Pa.  187  214 

Wilson  v.  Coursin,  72  Pa.  306  75 

Wilson's  App.,  45  Pa.  435  99 

Wilson's  Est.,  2  W.  N.  C.  631  130 

Wiltberger's  Est.,  18  Phila.  232,  44  L.  I.  431,  4  Pa.  C.  C.  184 170 

Woodward's  App.,  38  Pa.  322  150 

Wright's  Est.,  2  Kulp  442  166 

Wylie's  Est,  7  D.  R.  748  176 

Yard's  Est.,  17  Phila.  436,  42  L.  I.  17,  15  W.  N.  C.  422  

13, 67, 103, 107, 148, 163 

Yeatman's  App.,  102  Pa.  297  210 

Young's  Est.,  224  Pa.  570 133 

Young  v.  McCamant,  241  Pa.  232  178 


Table  of  Statutes 

(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 


Date.    Sec.   P.  L. 
1718,  Feb.  22   3  i  Sm.  L.  99 

1749,  Jan.   27   i  i  Sm.  L.  103 
1799,  Jan.   16   2  3  Sm.  L.  338 

1821,  Feb.   5   i  7Sm.  L.355 
1832,  Mar.  29   2        190 

13 
31 
32 
1834,  Feb.  24  15        70 

16 

17 
18 

24 
42 

43 

44 
1836,  June  13  22        597 

1836,  June  16   i        682 

1846,  April  20   2        411 

1847,  Mar.  16   2        474 

1849.  April    9    16  524 


Stewart's 
Subject  of  Act.       Purdon.       Page. 

Sale  or  mortgage  by 
shipwrecked  husband,  1663  77 

Common  recovery,    . .          1483  84 

Deed  to  bar  an  estate 
tail,  1483,1484  85 

Extinguishment  o  f 
ground  rents 1805  55 

Orphans'  Court  a  court 
of  record,  3360  190 

Allowance  for  minor,          49,63,64 

Orphans'  Court  sales,.          1116   100,103 

Orphans'  Court  sales,.          1118   174,212 

Parol  contracts  of  de- 
cedent,   

Parol  contracts  of  de- 
cedent,   

Parol  contracts  of  de-j-         741    126,192 
cedent,  

Parol  contracts  of  de- 
cedent,   

Parol  contracts  of  de- 
cedent,   

Duration  of  lien  of 
decedent's  debts,  ...  1 106  97 

Lien  of  decedent's 
debts  discharged  by 
sale  in  partition,  . .  3439  99 

Security  Orphans' 
Court  sales,  1122,3439  140,226 


Execution  of  deed,  .. 

Sale  of  land  of  a  luna- 
tic,   

Sale  of  interest  of  a 
minor,  

Common   Pleas,    

Sale  of  vacant  land  of 
a  minor  on  ground 
rent,  

Purchaser  of  real  es- 
tate at  judicial  sale 
obtaining  possession, 

299 


186 
2397     73.193 

3385  63,64,74 
3379          149 


1120 


1588    177,178 


300  TABLE  OF  STATUTES. 

(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 

Stewart's 
Date..        Sec.  P.  L.      Subject  of  Act.       Purdon.       Page. 

1849,  April   16      I  663     Sale  of   standing  tim- 

ber of  a  lunatic  or 
habitual  drunkard,  .  2399  74 

1851,  April     3  305     Sale   of   interest   of  a 

minor,    1119       63,65 

Sale  by  trustee,    1120          in 

1851,  April    10      5  505     Confirming     defective 

deeds  to  bar  an  es- 
tate tail,  1484  84 

1851,  Oct.     28      7  1852     Conveyance     by     hus- 

725        band  with  an  insane 

wife,  2406,2463  77 

1853,  April   18      i  503     Price  Act,    3999         215 

2  Price   Act,    4003,4017  216 

3  Price  Act,    4017  220 

4  Price  Act,    4019  221 

5  Price  Act,    4023  226 

6  Price  Act,    4025  227 

7  Price  Act,    4027  228 

8  Price  Act,    4028  230 

9  Accumulations,     4036  Omitted 

10  Price  Act,    4029  230 

1854,  Feb.     20      3  90    Amount    of    corporate 

holdings,    779  80 

1854,  April    13       I  368    Acknowledgments,    ...          4029          221 

2  Investments  in  real  es- 

tate,            I  no          51, 

4029,4928     58,169 

3  Court  may  ratify  aft- 

erwards,              4030      25,26, 

215 
1854,  April  21  437    Alienation    by   mining 

companies,  ....  78 

1854,  Dec.     14  724    Acknowledgments,   . . .  376,          222 

1170,1511 

1855,  April  26      9  328     Forfeiture,    1477  80 

1855,  April  27      I  368     Estate    tail,    1485       84,89 

5  Jurisdiction     Orphans' 

Court  and   Common 

Pleas,   4031      21,215 

1855,  May      3      3  4^5     Expenditure    of     per- 

sonal property  on 
improve  m  e  n  t  of 
trust  real  estate,  ..  4885  47 


TABLE  OF  STATUTES. 


301 


(The  text  of  the  statute  is  given  where  the  reference  is  in  hea 

Date.         Sec.              P.  L.      Subject  of  Act. 

1855,  May      4      2                  430     Conveyance  of  real  es- 
tate   by    wife    when 
abandoned    by    hus- 
band    

,vy  face  type.) 

Stewart's 
Purdon.       Page. 

1663           75 
1085           71 
4034     21,215 
129 
3386,4035     44,223 
1484           84 

1807           55 
4031          185 

4031             222 

4031  20,59,72, 
76,79,112, 
140,229 

"55     77,219 
2615           78 

4034     74,217 

222 
4032             222 
....             226 

1856,  April  21                           495 
1856,  April  21                           486 
1857,  Mar.    14      3                    97 
1859,  Mar.    22                         207 
1859,  April   15       I                   670 
1860,  Sept.     6      i          1861,840 

1861,  May      I      2                  431 
1863,  April     i       i                   187 

1864,  April   18      i                   462 

1865,  Mar.    22                           30 
1865,  Mar.    27      i                    34 
1866,  April   ii                          780 

1866,  April    17       i                    108 
1867,  Mar.    23      i                    43 

2 

0 

3 

1867,  Jan.     ii       i                 1372 
1867,  July     18 

Certificate   to  be   filed 
by  foreign  guardian, 
Confirming     sales     of 
lunatic's  estate,   
Effect    of    decree    in 
equitable  partition,  . 
Terms     of     Orphans' 
Court  sale        .... 

Judicial  sale  of  an  es- 
tate tail,    

Extinguishment       o  f 
ground   rents,    

Execution  of  deed,  .  . 
Acknowledgment       by 
persons  out  of  state, 
Change  in  location  of 
right  of  way,       .... 

Conveyance   by   minor 
wife         

Alienation    by    mining 
company    

Sale    by    husband    or 
wife     of    a    person 
non  compos  mentis, 
Acknowledgments,    ... 
Acknowledgments,   .  .  . 
Security    

Private  sales,  effect  of, 

Discharge    of     mort- 
gages    by     judicial 

4032       44,I06 

144,146, 
174,204, 

209 

1185        206 
2616        78 

78 

Alienation    by    mining 
companies    

Mining  companies,    .  . 

302  TABLE  OF  STATUTES. 

(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 

Stewart's 
Date.         Sec.  P.  L.      Subject  of  Act.       Purdon.       Page. 

1869,  April    15  47     Authorizing    e  x  t  i  n  - 

guishment    of    irre- 
deemable   ground 

rents, 1807,1808  14 

1869,  April  20  78     Lunatics,   2358          198 

1871,  May      8      2  265     Alienation    by    mining 

company,  78 

1874,  April  20  no     Sale  of  real  estate  of 

dissolved      corpora- 
tion   819  79 

1874,  April  29  i  73  Alienation  and  pur- 
chase of  real  estate 
by  corporation  gen- 
erally,    770  78 

1874,  May     n       i  131     Sole  and  separate  use, 

conveyance  by  trus- 
tees of,    4032          116 

1874,  May     14  166    Sale  of  land  less  than 

$i,ooo, 3385         231 

1874  May     19  208     Sale  of  burial  grounds,     559,560          134 

1874,  May    21  221     Implied  entails,  1485  85 

1874,  June      8      i  277    Lease  of  mining  lands,          4033     50,231 

1876,  April   17     10  30    Alienation  by  real  es- 

tate  companies,    ...          ....  78 

1876,  April  28  i  50  Validating  certain  ir- 
regular sales,  4033  198 

1876,  May     13  159     Sales       of       burial 

grounds,  560          134 

1877,  Mar.    24      i  39     Sales       of       burial 

grounds 4033     20,133 

217 

1877,  April   18      6  54     Sales       of       burial 

grounds 561          134 

1878,  May    22      i  83    Execution  of  deed,  . .          4035    185,186 
1878,  May    22  96    Validating      corporate 

holdings 597J479  79 

4108 
1878,  May    24  134    Justice  of  the  peace,  .          177 

1878,  May    25      i  154    Conveyance     where 

married  person  is  a 

lunatic 2406,2463  76 

1879,  Mar.   28      i  14    Release   of   dower   by 

wife  of  a  lunatic,   .          2463  75 


TABLE  OF  STATUTES.  303 

(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 

Stewart's 
Date.         Sec.  P.  L.      Subject  of  Act.       Purdon.       Page. 

1883,  May    22  41     Validating      corporate 

holdings 597,1479  79 

4108 

1883,  June    20      i  130    Estate  tail,  1485  84 

1885,  June    24  155     Persons    presumed   to 

be  deceased 1075     15,135, 

138 

1885,  June    25  178     Sale  of  real  estate  of 

dissolved      corpora- 
tion,    79 

1887,  Mar.  22  6  Discharge  of  mort- 
gages by  judicial 
sale,  1185  206 

1887,  May     12  96    Sales       of      burial 

grounds,  561          134 

1887,  May    23      I  168    Sales       of      burial 

grounds 562   133,217 

1887,  May    24  202    Sale   by  overseers   of 

the  poor  of  property 
of  an  insane  pauper,          3576  75 

1887,  May    26  374    Validating      corporate 

holdings,    597,1479  79 

4108 

1889,  April  22  42    Amount  corporate 

holdings 779,4928  80 

1889,  May      9      I                   159    Alienation,  etc.,  of  real 
C1.8                               estate  by  title  com- 
panies,            4761  78 

1889,  May  9  182  Private  sales  author- 
ized,    II2I  43,174, 

224 

1889,  May     13                           190    Foreign  guardian,    . . .  1085  71 
1889,  May    21      I                  257    Mortgages  by  corpora- 
tions  : 812  78 

1891,  April   15      I  15     Sale  of  real  estate  of 

a  dissolved  corpora- 
tion,      818  79 

1891,  April  22      I  25     Conveyance  by  a  mar- 

ried woman  trustee,         4924  75 

1891,  May    26  118    Sale  of  burial  grounds,     562,563          134 

1891,  June    16  310    Sale  of  burial  grounds,  562          134 

1893,  May     18  88    Validating      corporate 

holdings,    597,1479  79 

4108 


TABLE  OF  STATUTES. 


(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 

Stewart's 


Date.         Sec. 

1893,  May  19 

1893,  June  6 

1893,  June  6 

1893,  June  8 

1893,  June  12 

1895,  May  22 

1895,  June  7 

1895,  June  24 

1895,  June  24 

1895,  June  25 

1895,  June  26 

1897,  April  20 

1897,  May  19      4 

1897,  June  14      i 

1897,  June  15 

1897,  July  9 

1897,  July  15 

1899,  April  28 


Purdon.       Page. 


206 
80 

134 


209 

134 
213 

142 


74 


P.  L.      Subject  of  Act. 

no  Discharge  of  mort- 
gages by  judicial 
sale,  1185 

324  Corporate  holdings,   ..    594,4112 

325  Sales       of      burial 

grounds 562 

392    Lien      of      decedent's 

debts  not  of  record,          1108     99,106 
461     Sale    on    petition    of 

.  ,    widow  and  heirs,  ..  3386,3447  172,197, 

231 
in     Discharge     of     taxes, 

etc.,  by  judicial  sale,  2694,4666 
181     Saleof  burial  grounds,  562 

212     Superior  Court,   4498  et  seq. 

248  Cost  of  obtaining  se- 
curity   

300  Sale  of  property  of  a 
weak-minded  per- 
son,   2408,2409 

381  Appointment  of  com- 
mittee ad  litem.  of  a 

lunatic,   2401,3451 

28    Validating      corporate 

holdings 597,1479 

4108 

67    Appeals,   1430,1433, 

1447,1448, 

1449,1451, 
1465,1467 

144  Remainders  to  a  class, 
amendment  of  Price 

Act, 4003-4017      53,91, 

216 

159     Remainder  to  a  class,          3386      91,97, 

4033-4034  216,232 
212    Conveyance  of  real  es- 
tate     by      married 
woman  where  sepa- 
rated from  husband,          2450  75 
283    Amount   of   corporate 

holdings,    4582,4583  80 

772 
112     Sale    of    property    of 

weak-minded  person,          2409  74 


OF  STATUTES.  305 

(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 

Stewart's 
Date.         Sec.  P.  L.      Subject  of  Act.       Purdon.       Page. 

1899,  April  28                          157     Parol  contracts  of  de- 
cedent,             126 

1899,  May      5  248     Superior  Court 6055          213 

1901,  April    19       I  83     Execution  of  deed,  ..  186,187 

1901,  May      8      I  141     Discharge  of  mortgage 

by  judicial  sale,    ...4022,4024,          206 

4998,1184 

1901,  May    21  272     Sale  of  land  of  minor 

in     two     or     more 

counties,    3387,4034     70,216 

1901,  June    19      2  574     Sale  of  property  of  a 

weak-minded  per- 
son,   2407,2408  74 

5657 
1903,  April   15  200    Validating      corporate 

holdings 597, 1479,  79 

4108 

1903,  April  22  241     Acknowledgments,   ...          4031    187,222 

1903,  April  27  325     Private  sale  of  land  of 

a  lunatic,  2399,4035  73 

1905,  April     8  121     Purchaser    at   judicial 

sale  obtaining  pos- 
session,   1588,5475  178 

1905,  April  20  239     Purchaser    at    judicial 

sale  obtaining  pos- 
session,   1588,1929,  178 

58i5 

1907,  May      I  140    Division  of  charitable 

corporation  and  con- 
veyance of  property,  5295,5296  81 
1907,  May    28                         292     Sale    of    property    of 

weak  -  minded  per- 
son,   5655,5656,  47,233 

5657 

1907,  May    28  296    Insurance      company, 

alienation    and    pur- 
chase of  real  estate,          5613  79 
1909,  April  23                           155     Transfer      of      burial 

ground  by  borough 
to  cemetery  com- 
pany,    5276 

1909,  April  23  156    Acknowledgment      t  o 

deed,  5393 


306  TABLE  OF  STATUTES. 

(The  text  of  the  statute  is  given  where  the  reference  is  in  heavy  face  type.) 

Stewart's 
Date.         Sec.  P.  L.      Subject  of  Act.       Purdon.       Page. 

1909,  April  27  185  Sale  of  property  of 

weak-minded  person 
residing  out  of 
county,  5654,5655  74 

1909,  April  39  291  Sales  of  burial 

grounds 5291  134 

1911,  June  31  631  Married  woman's  con- 

veyance to  husband,  372  Supp.  75 

1911,  June      9  724     Notice  of  private  sales,    218,219,     43,224 

5<>5 
1911,  June    10  871     Validating      corporate 

holdings,    172  79 

1911,  June    15  955     Validating      corporate 

holdings,    79 

1913,,  May     15  214    Amount   of   corporate 

holding,   80 

1913,  May    23  304     Sale    where    interests 

are  undivided,  231 

1913,  May    23  345     Amicable  partition  by 

guardians 131,228 

1913,  May    28  369     Persons    presumed    to 

be   deceased,    138,219 

1913,  May    28  373     Persons    presumed    to 

be  deceased,  135 

1913,  June    12  470     Notice       of       private 

sales,  43,224 

1913,  June    25  551     Sales      of       burial 

grounds, 134 

1913,  July     21  871     Validating    private 

sales, 225 


Index 


Page. 

Absentee     n,  135 

Persons  absent  and  unheard  from    135 

Circumstances  of  presumption     136 

Constitutionality  of  clause  as  to    I5n,  136 

Heirs  as  to  notice  to 137 

Notice  to  the  absentee    136 

Petition   137 

Preliminary     ., 135 

Price  Act,  provisions  of,  as  to    135 

Personal  property  of    15, 16,  135 

Purchase  money,  distribution  of    16 

Time  of  presumed  death    136 

Accumulations     28-227-230 

Charities,  amount  of,  by 80 

Acknowledgment  to  deed    187 

Acts  of  assembly  cited    First  page  of  Table  of  Statutes 

Administration  of  the  property    17 

Alienation — 

Cestui  que  trust  by    116 

Executory  devise,  of 99 

Forfeiture  for    40,  41 

Immunity  from 36 

Involuntary     9 

Purchaser  at  Orphans'  Court,  sale  by    184 

Prohibition  of    41 

Voluntary     9 

Alienability  object  of  statute  13 

Alley,  laying  out  and  vacating    59 

Amicable  partition 129  et  seq. 

Appeals     213 

Decrees  appealable 214 

Effect  of    213 

Notice  of     213 

Orders  appealable 214 

Supersedeas  when  213 

Who  may 213 

Apportionment  of  interest   181 

Associations — 

Charitable     82 

Beneficial    ,. 82 

Religious 82 

Assumpsit 173 

307 


308  INDEX. 

Page. 
Authors  cited — 

Foulke,  Roland  R  — 

Equitable  Conversion  in  Penna.,  58  U.  of  P.  Law  Rev. 

455    126,  150, 192 

Perpetuities,  Rule  Against,  etc.,  in  Penna.  (1909),  

41,  80, 82,  84,  87,  89, 98, 107,  108,  in,  112, 117,  227,  230 

Powers  of  Sale  in  an  Executor  in  Penna.,  59  U.  of  P. 

L.  Rev.  597    107 

Gest,  John  Marshall — 

Drawing  Wills  and  Settlement  of  Estates  in  Penna 135 

Price,  Eli  K.— 

The  Act  for  the  Sale  of  Real  Estate  ( 1874)    14,  27,  37, 

84,  85,  86,  91,  94,  95,  98, 106,  HI,  116,  122,  125,  127,  129,  141,  145 
Wharton,  Henry — 

Lien   of   Decedent's   Debts   in   Penna.,  6  W.   N.   C.   545 

( 1879)      100,  106,  203,  206 

Base   fee    107 

Building  association  mortgage     46 

Burial  grounds,  see  Cemeteries. 

Burial  grounds,  trust  for 39 

Cases  to  which  Price  Act  applies    18 

Case  stated    173 

Caveat  emptor    169 

Cemeteries 39 

Borough,  sales  of,  by    134 

Burial   use     134 

Charter,  by  way  of  133 

Church,  sale  by    , 134 

Cemetery  company,  sale  by    134 

Buried,  persons  in 134 

Legislation  concerning    133  et  seq. 

Lot  holder   134 

Modified  fees  by  way  of    133 

Petition     134 

Price  Act,  provisions  of    133, 134 

Purchase  money    .  134 

Quarter  Sessions,  jurisdiction  of    134 

Removal  of  dead    134, 135 

Trust,  by  way  of    133 

Who  may  petition    134 

Cestui  que  trust — 

Charitable     118 

Consent  of    115 

Notice  to    114-115 

Life,   to     115 

Remainders,  to 115 

Married  women    116 


INDEX.  309 

Page. 

Cestue  que  trust — 

Price  Act,   provisions   of     112 

Petition   by    I7n,  114 

Personal  property  interest  is     22 

Sale  to,  by  trustee    117 

Trustee,  sale  to,  by    117 

Title  of,  sold    116 

Charge     9 

Charitable  objects    118 

Definite    1 18 

Indefinite    1 18 

Non-charitable    1 18 

Charity- 
Trust   for     118 

Prejudice,    without   to     — 35-36 

Price  Act,  provisions  of    118 

Prohibition  of  alienation  as  to     41 

Security  in  case  of    142 

Charter,   as  a  law     37-38 

Child-bearing  in  women,  age  of    90 

Class,  remainders  to — 

Class,  to  generally    92 

Equitable    93 

Definition   of 90 

Children  to    92 

Purchase  money,  discharge  of,  from    97 

Price  Act,  application  of,  to    91 

Supplements  of  Price  Act,  as  to    91 

Collateral  attack  law  in  Pennsylvania  202 

Conclusive  of  facts  set  out  in  record,  decree    194 

Decree  now  conclusive 100 

Law  formerly  otherwise 189 

Where  no  decree    199 

Fraud,  because  of 200 

Irregularities,  no,  because  of    190 

Jurisdiction,  where  record  does  not  show  198 

Law  in  Pennsylvania,  statement  as  to  202 

Mistake,  because  of    200 

Mutual     201 

Preliminary    200 

Unilateral 201 

Notice,  party  in  interest  without    192 

Notice,  party  in  interest  with    * 197 

Notice,  presumed  when     24,  I93n. 

Parol  evidence  to  explain   199 

Preliminary   discussion    189 

Price  Act,  provisions  of,  as  to  155 

Record  facts  in,  may  not  be  impeached 194 


310  INDEX. 

Page. 

Colorable   sale    36 

Common,  ownership  in   10 

Common  Pleas — 
Jurisdiction  of — 

Equity    18 

Lunatics    73 

Price  Act,  under  18 

Orphans'  Court  sales,  jurisdiction  over  160 

Orphans'   Court   and    19, 21 

Ratify,  what  it  could  confirm  before  25 

Common  recovery 84 

Completion  of  Orphans'  Court  sale,  rights  of  parties  pending  ....  178 

Compulsory   sale 17,  26 

Conditional  fee  107 

Confession  of  judgment   49 

Confirmation  of  sale 159 

Consent,  no  jurisdiction  by  23 

Consent  of  cestui  que  trust US 

Consent  of  cestui  que  trust  to  omission  of  sureties  142 

Consideration  must  be  adequate 43 

Constitutional    law    14,  15,  142 

Constitutionality  of  Price  Act — 

Absentees   as  to    15 

Class  remainders  to   90 

Contingent  remainders  to • 15 

Estate  tail  to   15 

Executory  devise  15 

Power  of  sale  14 

Possibility  of   reverter    14 

Sui  juris  owner     14 

Vested  interests   14 

Contingent  remainders — 

Class  to,  see  Class  remainders  to. 

Destruction  of   87 

Equitable   88-97 

Legal    88-94 

Mortgage    97 

Notice     90 

Ascertained    person 90 

Unascertained   person    90 

Petition   89 

Preliminary   discussion    87 

Price  Act,  provisions  of  87-88 

Purchase  money,  discharge  of,  from  93  et  seq. 

Vested  remainders,  and  89 

Corporations — 

Capacity  to  convey  78 


INDEX.  311 

Page. 
Corporations — 

Charitable 81 

Division    of    charitable    8l 

Judicial  sale,  holding  property,  purchased  at  79 

Literary    81 

Limitations  upon  holdings   80 

Lease   by    » 80 

Mortgage  by  , 79 

Religious  • 81 

Superfluous  provisions  of  Price  Act,  as  to 79 

Coverture — 

Husband  with  wife — 

Absentee    77 

Abandoned  him   77 

Habitual   drunkard    77 

Lunatic    77 

Minor    77 

Shipwrecked    77 

Married  woman — 

Absentee  husband 75 

Abandoned  by   husband    75 

Change  of  location  of  right  of  way 76 

Conveyance  to  husband   75 

Feme  sole  trader  75 

Lease   by    76 

Lunatic  husband   76 

Mortgage    by 76 

Notice  to   24,  115 

Petition  in  case  of 76 

Trustee  when,  conveyance  by  75 

Death,  presumption 

Time  of    136 

What  is    * 136 

Debts  of  a  decedent — 
Not  of  record — 

Duration  of  lien    99 

1832,  Act  of   100 

See   105 

Expired  lien    106 

Price  Act,  provisions  of  100 

Power,   sale  under   107 

Preliminary   discussion    99 

Private  sale,  effect  of 105 

Record  of — 

Private  sale,   effect   of    105, 209 

Public  sale,  effect  of   209 

Decedent,  parol  contracts  of  126 


312  INDEX. 

Page. 
Decree — 

Collateral  attack  upon,  see  Collateral  Attack. 

Execute,    who   may    60 

Effect   of    159 

Endorsing  on  deed   186 

Forms  of,  see  Forms. 

Deed,  acknowledgment  of 187 

Decree  of  court,  must  conform  to  188 

Execution   of    184 

Endorsing  decree,   on    186 

Recording  of    187 

Setting  aside,  after  payment  of  purchase  money 175 

Defective    appointment    124 

Destruction  of  buildings  by  fire  180 

Determinable  fee   107 

Definition  of   107 

Price  Act,  provisions  of   • . .  108 

Possibility  of  reverter  after  108 

Devisee — 

Title  of,  when  divested  by  Orphans'  Court  sale 179 

Devolution    9 

Lunatic  interest  of   152 

Minor  interest  of    150 

Sui  juris  owner,  interest  of    152 

Discharge  of  liens,  see  Liens. 

Discretion  of  trustees  40 

Disposition  of  or  concerning  the  title  authorized — 

Change  location  of  right  of  way  59 

Exchange    51 

Ground  rents,  conveyance  of  or  on  (see  Ground  Rents)  51  et  seq. 

Lay  out  streets  59 

Lease   49,  5O 

Mortgage 45,  47 

Purchase  of  real  estate 58 

Preliminary  discussion  of  42 

Sale,  see  Sale. 

Public    43 

Private    44 

Square  and  adjust  lines  57 

Streets,  lay  out  and  vacate  59 

Subdivide  tract  59 

Drunkard,  see  Habitual  Drunkard. 

Dower,  see  Coverture   148 

Due  process  of  law   9 

Eminent   domain    9 

Equitable  claim  against  title  sold   148 

Equitable  conversion    69,  153 


INDEX.  313 

Page. 

Equity  jurisdiction — 

C.  P.  over  lunatics   73 

Equitable  conversion    69, 153 

Equitable  interest,  Price  Act  as  to 22 

Original  equity  jurisdiction   ill 

Orphans'   Court,   of 18,  159 

Pennsylvania  in   lit 

Estate  tail — 

Barring  the  entail,  without  Price  Act 84 

Common  recovery  84 

Judicial  sale  of  84 

Lease  of  86 

Mortgage  of   • 86 

Partition  decree  in   84 

Petition 86 

Preliminary   discussion    84 

Price  Act,  provision  of 84-85 

Purchase  money    85 

Remainders  after 85 

Ex  parte  application  23 

Exchange    Si,  58 

Partition  distinguished  from  51 

Execution  of  decree  60,  72 

Executor — 

Sale  under   power    107 

C.  P.  jurisdiction  as  to  161 

Power  of  sale  in 35 

Executory  devise — 

Nature  of  97 

Petition 97,  98 

Price  Act,  provisions  of  97,  98 

Purchase  money 98 

Exemption  from  sale  or  alienation — 

Church,  as  to   41 

Exchange    30 

Ground   rents    30 

Law,  as  to 41 

Location  of  right  of  way 30 

Lease 30 

Mortgage 30 

Partition 30 

Purchase  of  real  estate  30 

Prohibition  of  alienation  by  donor  41  et  seq. 

Specific  performance    30 

Square  and  adjust  lines   30 

Spendthrift    trust    41 

What   is 36 

21 


314  INDEX. 

Page. 

Expediency,  question  of   30 

Existing  legislation,  Price  Act  construed  with   25 

Minor's    interest 63 

Payment  of  debt,  sale  for 100 

Extrinsic  evidence  199 

Fact,  question  of  30 

Fee- 
Base    107 

Conditional    107 

Determinate   107 

Modified    107 

Qualified 107 

Feudal   law •  89 

Forfeiture  for  alienation  40-41 

Foreign  guardian    71 

Forms — See  Appendix  B. 

Absentee    (form)    272 

Change  location  of  right  of  way   249 

Charity  trust  for  public  sale  (form)   276 

Contingent  remainder — 

Ascertained  person  (form),  private  sale  259 

To  children  (form),  private  sale  254 

Class  to  other  than  children  (form),  private  sale 257 

Description    236 

Executory  devise    (form),  private  sale    261 

Exchange  (form),  private  sale 252 

Forms,  preliminary  remarks   235,  237, 239 

Ground  rents — 

Irredeemable  private  sale   (form)    266 

Redeemable  private  sale  (form)    264 

Jurisdictional    averments    236 

Lien  of  debts  not  of  record  private  sale  (form)   245 

Lunatics,  private  sale    (form)    284 

Minor,  private  sale  of  entire  interest  (form)  239 

Minor,  private  sale  of  undivided  interest  (form)   242 

Mortgage    (form)     286 

Partition : 

Amicable — 

Join    in    (form)    268 

Ratification    (form)    270 

Persons  presumed  to  be  deceased,  private  sale  (form)   272 

Preliminary 235 

Reasons    237 

Subdivide  tract  (form),  public  sale  278 

Title,  averment  of   • 235 


INDEX.  315 

Page. 

Forms — 

Trusts- 
Power  of  sale,  time  for  exercise  of,  expired,  private  sale 

(form) 247 

No  power  of  sale  private  (form)    281 

Vacating  roads  (form)   

Frauds,  Statute  of    163 

Fraud 168,  200 

General  jurisdictional  facts  29 

Ground  rents — 

Apportionment  of   181 

Assignment  of    54 

Conveyance  of,  on,  nature  of  51,  52 

Covenant  to  extinguish,  specific  performance  of   S3 

Decree,  relating  to  assignment  of,  form  of  57 

Extinguishment  of    14,  54 

Who  is  to   53 

Liens   against    55 

Lease  of 53 

Irredeemable ., , — 14,  56 

Judgments,  where  subject  to 55 

Mortgage  of   54 

Nature   of    51,  52 

Owner  of  land,  petition  by 55,  57 

Partition  of     54 

Power,  extinguishment  of,  reserved  under 52 

Price  Act,  application  of,  to  52,  et  seq. 

Proceeds  of,  conveyance  on   154 

Redeemable    56 

Sale  of 54 

Security  on  conveyance  reserving  57 

Subdivision  of    53 

Title  to  ground  rent  affected  by  circumstances  mentioned  in 

act   53 

Undivided  interest  in  54 

Guardian — 

Appointment  of   66 

Foreign    71 

In  one  county  land,  in  another 69, 145 

Notice  to   66 

Petition  by 66 

Security   145 

Habitual  drunkards — 

Act  of  1836  73 

Other  legislation  as  to    •  72 

Price  Act,  application  of   72 


316  INDEX. 

Page. 

Heir- 
Title  of  179 

When  divested 179 

Interest  and  advantage  to — 

Appeal,  as  to    30 

Fact  is  a  question  of 30 

Life  tenant  and  remainderman  31 

Mortgage  in  case  of  31 

Purchasers  title,  as  to 30 

Reasons  why  to 31-32 

Res  judicata  when  30 

Improvements  and  repairs,  sale  to  pay  for  34 

Immunity  from  sale  or  alienation,  see  Exemption. 

Introduction,    9  et  seq. 

Investment  in  real  estate   51 

Issue  to  Common  Pleas  149 

Judges  referred  to — 

Agnew    17,  37 ,39 

Allison   68, 102 

Archibald    108 

Ashman   26,  46,  123 

Bittenger      181 

Brown    • 167 

Clark    , '..  .60,  101,  104,  105,  131,  193 

Clayton    81 

Darte 35 

Dean    101 

Doty • 151 

Duncan    191 

Gibson   52 

Green   95, 105 

Hanna 105, 137 

Kennedy   122,  144,  145 

Lowrie     159 

Ludlow    • 13,  no,  117 

Mercur 210 

Mestrezat    30,  89,  06,  173 

Mitchell    17,  29,  81, 123, 195,  211 

Paxson 60 

Penrose    13,  14,  34,  45,  46,  51,  55, 100,  123,  124, 153,  154,  157,  181 

Pierce  70 

Rice   • 13,  102,127 

Simonton    91 

Smith    47,  159 

Strong   14,  89 

Sulzberger    41, 81 

Swartz 90 


INDEX.  317 

Page. 

Judges  referred  to — 

Thompson    13,  34,  102, 105, 151 

Tilghman    191 

Trunkey    • 27,  103,  105,  149,  230 

Walling   208 

Judgment    9 

Judgments  against  purchaser  182 

Judicial  sale • 203 

Common  recovery,  as  a  84 

Discharge  of  liens  by  203 

Orphans'  Court  sale  is  203 

Jurisdiction — 

C.  P.  and  O.  C.  as  between  . .  19  et  seq. 

Consent,  no  by  23 

Mistake  as  to 200  et  seq. 

O.  C.  and  C.  P.  as  between  19  et  seq. 

Price  Act  under,  confined  to  cases  specified 18 

Real  property,  as  to  21 

Situs  of  land,  with  respect  to 22 

Jurisdictional  facts,  general  29 

Alienation,  violation  of  law  conferring  immunity  from 36 

Interest   and   advantage   to    30 

Reasons  why  31 

Price  Act,  provisions  of  29 

Prejudice,  without  to  trust  or  charity 35 

Violation  of  law  conferring  immunity 36 

Justice  of  peace  177 

Law  conferring  immunity    36-37 

Lease — 

Corporation  by  50 

Committee  of  a  lunatic  by 49 

Guardian  by    50 

Improvement   51 

Life  tenant,  contingent  remainders   50 

Life  tenant,  vested  remainders  50 

Long  term 51 

Married  women  by  50 

Mining  land  of    50 

Security,  in  case  of    140 

Superfluous  provisions  of  act  as  to  28,  49,  50 

Trustee  by  49 

Unconfirmed 50 

Vested  interests,   against 17,  50 

Legacies    9 

Legal  disabilities — 

Associations   82 

Corporations    78 


318  INDEX. 

Page. 

Legal  disabilities — 
Coverture — 

Married  men  76 

Married  women   75 

Habitual   drunkards    72 

Lunatics    72 

Minority,  see  Minor   62  et  seq. 

Preliminary  discussion  of  61 

Religious,  beneficial,  charitable  corporations 81 

Weak-minded  persons   74 

Liability  to  see  to  the  application  of  the  purchase  money — 

Bond,  effect  of  filing,  on  144 

Private    sales    •  144 

Liens,  discharge  of — 

Agreement  of  parties  as  to 211 

Arrears  of  interest  on    210 

Collateral  inheritance  tax    208 

Debts   of  decedent    209 

Dower   209 

Ground   rents 211 

Judgments    • 207 

Judicial  sales,  general  rule  as  to  203 

Legacies • 207 

Mortgages    205 

Private  sale  by    201 

Public  sale  by  201 

Sheriff's  sale  distinguished  203 

Taxes 209 

Lien  of  debts  of  a  decedent,  see  Debts  of  a  Decedent. 

Life  tenant  and  remainderman    31,  33 

Possible  increase  in  value  of  land  32 

Limitation  of  amount  of  property  to  be  held  by  charitable  corpora- 
tions      80 

Limitations  of  and  liens  upon  the  title — 

Class,  remainders  to  90 

Contingent    remainders    87 

Contingent  remainders,  and  vested  remainders  89 

Executory  devise  97 

Estate  tail    84 

Lien  of  debts,  not  of  record   99 

Modified   fees   107 

Lunatics — 

Cestui  que  trust  a   72 

1836,  Act  of   73 

Defendant  a  lunatic   74 

Husband  a  lunatic  74,  75 

Inquisition,  necessity  of   72 

Notice  in  case  of   73 


INDEX.  319 

Page. 

Lunatics — 

Partition    •  72 

Pauper,    insane    75 

Petition    72 

Purchase  of  real  estate  71 

Square  and  adjust  lines  72 

Vendor  and  vendee   73 

Weak-minded  persons    74 

Wife,  a  lunatic   74,75,77 

Married  men,  see  Coverture. 

Married  Women,  see  Coverture. 

Maintenance  and  education  of  a  minor 49 

Merger    54, 87 

Minors — 

Act  of  1832  64 

Act  of  1836  64 

Act  of  1847  GS 

Act  of  1851 65 

Conversion  as  to   64 

Counties,  two  or  more,  land  in  70 

Devolution  of  interest  of  64 

Foreign   guardian 71 

Guardian,   appointment  of    66 

Lease  of  land,  of   50 

Notice  to    66 

Mortgage  of  interest,  of  45 

Partition 131 

Price  Act,  provisions  of   62 

Reasons  for  sale   69 

Security,  in  case  of   70 

Undivided   interest    67,  68 

Modified  fees,  see  Determinable  fee. 

Forms  of   107 

Possibility  of  reverter  108 

Price  Act  provisions  of  107 

Mortgage — 

Building  association,  to  46 

Confession  of  judgment,  with  49 

Cases    of 45, 46 

Execution   of    46 

Expediency,  in  case  of  31, 45 

Life  tenant  and  remainderman,  of  case  of  45, 47,  49 

Life  estate,  of  45 

Minor,   interest  of   • 45,  46 

Nature  of    45 

Proceeds  of,  expenditure  of 17,  48 

Purchase   money    44 

Purpose  of    45, 46 

Ratification  of 26 


320  INDEX. 

Page. 

Mortgage — 

Ratification   of    26 

Trust  estate,  of  46,  47 

Vested  interest,  against  consent  of  17 

Mortgagee,  duty  of   46,  47 

Nominal   consideration    • 36 

Notice — 

Absentee,  to    16,  17,  24, 136 

Advertisement  by   24, 136 

Cestui  que  trust  to 

Contingent 115 

Lunatic    115 

Present    115 

Future   115 

Collateral  attack,  see 192,  197 

Effect  of    197 

Expectant  interest 24 

General  discussion  of 23 

Guardian  to,  where  no 65 

Lunatics,  in  case  of 73 

Married  women,  to  24 

Minors,  to,  where  no  guardian  65 

Nonresidents   23,  24  136 

No  notice,  where  no 24,  192 

Posting,   by 23 

Presumption   of    24,  115,  I93n. 

Publication,  by   23 

Present  interest,  to  24 

Price  Act,  provisions  of ,  as  to  23 

Record  lost  where   • 24 

Objects — 

Indefinite 1 18 

Definite    , 118 

Price    Act    118 

Order  of  sale   162 

Orphans'  Court  jurisdiction — 

Advisory     18 

Common  Pleas  and  19 

Conclusive  when   25 

Consent,  no,  by   23 

Direction  in  will,  not  ousting 18 

Equity,  a  court  of 159 

Failure  of,  effect  of   18 

Price  Act,  under,  confined  to  cases  specified 18 

Ratify  what  it  could  authorize  in  advance  25 

Sale 

To   enforce    172 

Where  interest  undivided 26 

Statutory  only   18 


INDEX.  321 

Page. 
Orphans'  Court  sales — 

Advertisement   of    23, 24 

Apportionment  of  interest  on  encumbrances  181 

Collateral  attack  upon  202 

See  Collateral  attack. 

Colorable 36 

Common  Pleas,  jurisdiction  of,  over 21,  260 

Confirmation  of,  effect  of,  on  159 

Common  Pleas  jurisdiction   21 

Price    167 

Title   170,  171 

Deed- 
Acknowledgment  and  recording  187 

Who  is  to  execute  184 

Devisee,  effect  of,  on  title  of  179 

Dicta  as  to  163 

Discharge  of  liens  by,  see  Liens. 

Enforcement  of  by  Orphans'  Court  and  Common  Pleas 172,  173 

Equitable  principles  applicable   181 

Fire,  destruction  of  buildings  by  180 

Fraud • 168, 200 

Frauds,  Statute  of  163 

Heir,  title  of,  effect  on    179 

Jurisdiction,  where  no   163 

Mistake — 

Mutual    201 

Unilateral    201 

Nature  of  159 

Nominal  consideration  36 

Objection  to,  how  raised 162 

Order  of  sale  162 

Parol  evidence  to  vary  or  explain 199 

Parties  interested    163,  168 

Possession,  purchaser  obtaining,  after 177 

Powers,  sales  under,  distinguished  161,  167 

Preliminary  discussion  of, 159 

Price  of  sale — 

Adequate,  must  be   43,  164 

Confirmation  conclusive  as  to  167 

Inadequacy  of  setting  aside  for 164 

Public 165 

Private 166 

Private 43,  165,  204 

Proceedings  for  sale   161 

Proof  of  190 

Public    43,  165,  204 

Purchaser  at  (see  Purchaser)    169 


322  INDEX. 

Page. 
Orphans'  Court  sales — 

Resale 162,  166 

Setting  aside   162,  166 

Sheriff's  sale  distinguished  from  203 

Terms   of    44 

Title  passed  by 176 

Title,  when  passes    179 

Ownership  in  common  10 

Parol  contract  of  decedent  126 

Partition     v •  •  •  •  IO 

Amicable   partition    129 

Preliminary  discussion  of  128 

Price  Act,  provisions  of  128 

Proceedings  in  partition   129 

Security  in  case  of   133 

Undivided  ownership,  when  necessary  in  case  of  10 

Partners    • 1/6 

Pauper,  insane   75 

Personal  property,  application  of  Price  Act  to 21 

Persons  absent  and  heard  from  (see  Absentee)  135 

Perpetual  trust  for  charity  142 

Petition- 
Executor,  by  60 

Interest,  party  in  59 

Who  may 59 

Place  in  law  of  the  Treatise  1 1 

Possibility  of  reverter  108 

Powers — 

Appointment,  of    124 

Consent,  refusal  to  122 

Division  of    120 

Exhaustion  of 52 

Price  Act,  provisions  of  1 12 

Sale  of,  as  to  121 

Time  not  arrived  for  its  exercise  122 

Time  limited  for  its  exercise  has  expired  121 

Preliminary  act  not  done  to  bring  it  into  exercise  121 

Persons  required  to  consent  or  join  in  its  execution  are 

Non  compos  mentis    121 

Removed  out  of  the  state  121 

Died    121 

Refused  to  act 121 

Unreasonably  withhold  consent   122 

Sale  under  power  of  26,  107 

Preamble  of  Price  Act  13 

Prejudice  to  trust  or  charity  35 

Colorable  sale  as   36 

Preliminary  discussion  13 


INDEX.  323 

Page. 

Prohibition  of  alienation  by  donor   37,  41 

Price  of   sale 43,164 

Price  Act- 
Appeals   under    30,  213 

Application  of    • 13,  14,  22 

Alienability,  object  of 13 

Cases  to  which  applies — 

Absentee     135 

Associations,  religious,  beneficial  or  charitable 82 

Burial   grounds    133 

Charitable  societies,  associations   82 

Class,  remainders  to  90 

Contingent   remainders    87 

Corporations 78 

Estate  tail    84 

Exchange    51 

Executory  devise  97 

Ground  rent — 

Conveyance  of  or  on  51 

Power  under  52 

Extinguishment  or  sale  of,  reserved  under  power  of 

sale    52 

Habitual   drunkards 72 

Legal  disabilities    62 

Lien  of  debts  of  a  decedent  not  of  record  99 

Lunatics    72 

Married  men — 

Wife  a  lunatic  77 

Wife   a  minor    77 

Married  women — 

Husband  absent  for  seven  years 75 

Husband  abandoned  her  for  two  years 75 

Modified    fees    107 

Minors  62 

Partition   128 

Amicable  129 

Proceedings  at  law  or  equity  129 

Parol  contracts  of  decedent  for  sale  of  land  126 

Purchase  of  real  estate  58 

Powers — 

Appointment    124 

Sale    of    121 

Persons  required  to  join  in — 

Deceased   121 

Non  compos  mentis   121 

Removed  out  of  state  121 

Refuse  to  act  .  121 


324  INDEX. 

Page. 
Price  Act — 

Powers  of  sale,  persons  required  to  join  in — 

Unreasonably  withhold  consent   122 

Time  for  exercise — 

Arrived,   not    122 

Expired    121 

Preliminary  act  not  done 121 

Right  of  way,  change  location  of 59 

Sale    42 

Streets,  lay  out  and  vacate  59 

Square  and  adjust  lines 57 

Trusts    1 10 

Vested   remainder,   liable  to  open  and  let  in  after-born 

children    po 

Common  Pleas,  jurisdiction,  under  18 

See  Common  Pleas. 

Common  Pleas,  Orphans'  Court,  as  between  19 

Constitutionality  of  14,  15 

See  Constitutionality. 

Condition  of  estate  immaterial  22 

Deed,    title   by 19 

Equitable  interests,  application  to   22 

Existing  legislation  with  respect  to 25 

Provisions  as  to  25 

Form  of  proceedings  under  (see  Forms). 

General  jurisdictional  facts   29 

Interest  and  advantage   29,  30 

Jurisdictional  facts   29 

Jurisdiction  under — 

Consent,  no,  by 23 

Confined  to  cases  specified  18 

Common  Pleas  and  Orphans'  Court,  as  between 19 

Notice    24 

Personal  property,  application  to 14,  21 

Preamble  of    13 

Prejudice  to  trust  or  charity   35 

Purchase,    title   by    , 27 

Purchase  of  real  estate  27 

Ratification  under 25 

Retroactive,   application   of 28,  40 

Real  property,  applies  only  to  21 

Legal  title  to 14,  21 

Situs  of  the  land   22 

Superfluous  provisions  of  27,  58 

Supplements  of  Appendix  A,  215  et  seq. 

Text  215  et  seq. 

Title  by  will   19 

Undivided  ownership,  application  to  26 

Urgent  necessity   35 


INDEX.  325 

Page. 
Price  Act — 

Violation  of  law  conferring  immunity  36 

Vested  interest,  application  to  16  et  seq. 

Object  of  13,  22 

Orphans'  Court,  jurisdiction  under  18 

See  Orphans'  Court. 

Preliminary  discussion  of    13 

Private  sale  44 

Undivided  ownership  in  case  of  27 

Public  policy   9 

Public  opinion 9 

Public  sale 43 

Public  use 9 

Purchaser — 

Alienation  by    184 

Collateral  attack  upon  title  of,  see  Collateral  attack. 

Indefeasible  by  whom  155,  156 

Judgments   against    182 

Liability  of — 

Confi  rmation — 

After 171,172 

Before   170 

After  deed  delivered  and  purchase  money  paid 175 

Orphans'  Court  sales,  see  169 

Preliminary  discussion  as  to  182 

Possession,  obtaining  177 

Possession  when,  entitled  179 

Refusal  to  carry  out  terms  of  sale 169 

Remedies  of    170 

Third  parties,  rights  against  183 

Title  of 155 

Alienation   155,  184 

Devolution    184 

Indefeasibility  of  • 155 

Passed  by  sale   176 

Price  Act,   provisions  of    155 

Unprejudiced  by  error 155 

Purchase  money — 

Account  of  proceeds 149 

Continuing  trust    • 149 

Separate  account   149 

Attachment  of,  interest,  in    153 

Cestui  que  trust,  claim  against 148 

Contingent  remainders,  discharge  of,  from 93 

Equitable    97 

Legal 94 

Class,  remainders  to,  discharge  of,  from 97 

Debts  of  decedent,  application  of,  to 148 


326  INDEX. 

Page. 
Purchase  money — 

Devolution  of  150 

Equitable  conversion,  effect  of  153 

Habitual    drunkard    •  152 

Lunatic    152 

Married  women  152 

Minor 150 

Price  Act,  provisions  of  150 

Sui  juris  152 

Disposition  of  proceeds  147,  148 

Executory  devise,  discharge  of,  from 98,  99 

Estate  tail,  in  case  of 85 

Discharge  of,  from  • . .  86 

Vested  remainders  86 

Ground  rents,  conveyance  of,  on  154 

Married  women,  terminating  trust  in  148 

Mortgage    • 17,  44,  153 

Rents    154 

Substitution  for  land  sold   147,  148 

Trust  in   148 

Tenant  in  tail,  interest  of  85 

Transfer  of  to  another  jurisdiction 152 

Widow's    dower    149 

Purchase  of  real  estate — 

Corporation  by   58-59 

Fiduciary  by   • 58 

Married  women  by  58 

Jurisdiction  of  court 22 

Situs  of  the  land  22,  59 

Protect,   security  held    58 

Needful,  adjoining   58 

Qualified  fee 107 

Ratify,  court  may  25 

Real  property,  application  of  Price  Act  to  21 

Reasons  for  sale   31 

Reference  as  to  a 30 

Costs  of    30 

Remainders — 

Class,  to  a  90 

Contingent,   remainders   87 

Vested  remainders    17,  50 

Rents- 
Nature   of    154 

Who  entitled  in  Orphans'  Court  sale  179 

Res  judicata   30 

Retroactive  application  of  the  Price  Act   28,  40 

Cases  arising  after  April  18,  1853  28 

Title  vesting  prior  to  April  18,  1853  28-40 

Circumstances  arising  after  28 


INDEX.  327 

Page. 

Return  of  sale   161 

Reverter,  possibility  of   108 

Right  of  way,  change,  location  of  59 

Sale- 
Colorable 36 

Confirmation  of   • 159 

Consideration  must  be  adequate 36-43 

Ground  rents,  conveyance  on,  distinguished  from  42 

Exchange,  distinguished  from   43 

Discharge  liens  by,  see 203 

Lease,  distinguished  from    43 

Mortgage,  distinguished  from 43 

Orphans'  Court  sale,  see  Orphans'  Court  Sale. 

Private    43,  44 

Necessary  averments  in  case  of  43 

Public  • • 44 

Advertisement  in  case  of  43 

Payment  of  debts,  for 44 

Terms  of   44 

Security — 

Amount  of  the  bond 140 

Approval   of    141 

Benefit  of,  to  parties  interested   142 

Cases  where  bond  required 139 

Change  of  location  of  right  of  way 76,  140 

Conveyance  on  ground  rent   57, 140 

Lease    140 

Mortgage    140 

Partition 140 

Purchase  of  real  estate   140 

Sale 140 

Square  and  adjust  lines   140 

Corporate  surety  141 

Cost  of  obtaining  security   142 

Decree,  filing  in  amount  of,  in 141 

Guardian's  security,  land  in  another  county   145 

Individual     142 

Liability  to  see  to  the  application  of  the  purchase  money  ....    144,  145 

Jurisdiction,  where,  to  be  filed  146 

Nominal  security 142 

No  sureties,  where  none  required  141 

Necessity  of  filing   143 

Price,  Act,  provisions  of,  as  to 139 

Perpetual  trust  for  a  charity 142 

Sureties  on  the  bond  141 

Sureties,  rights  against 142 

Trust  company  as   surety    142 


328  INDEX. 

Page. 
Security — 

Time  of  filing  143 

Undivided  interest  with  respect  to 141 

Situs  of  the  land — 

Jurisdiction   as   respects    22 

Purchase  of  real  estate 22 

Proceeds  of  sale  for  payment  of  debts 22 

Sole  and  separate  use   36-116 

Special  acts  of  assembly 14 

Specific  performance    26 

Decedent's    contracts    • 126 

Price  Act,  provisions  of  126 

Price  Act,  application  of,  doubtful  126-127 

Other  legislation    126 

Spendthrift  trust   41 

Square  and  adjust  adjoining  lines   57 

Streets,  laying  out  and  vacating  59 

Sui  juris,  vested  interest,  owner  of   15,  16,  32 

Earlier  acts  as  to  the  unconstituionality  of   14 

Provisions  of  the  act  as  to — 

Unconstitutional    15 

Superfluous    • 27 

Superfluous  provisions  of  the  act 27 

Corporations    28 

Leases 28 

Purchase  of  real  estate  28 

Trusts- 
Chancellors,   jurisdiction  over    10 

1851,  Act  of   in 

Charity  for 1 18 

Cestui  que  trust — 

Nature  of,  immaterial   112 

Consent  of  115 

Notice  to    • US 

Title  of,  as  to   116 

Equity  jurisdiction  of,  independent  of  the  act  in 

Equity  jurisdiction  now  probably  limited  by  the  act  in 

Improvement  of  real  estate 47 

Mortgage  of   46 

Petition,  the    • 1 14 

Prejudice  to  without   35 

Preliminary    discussion no 

Power  in  trustee  which  cannot  be  exercised   113 

Price  Act,  provisions  of,  as  to  112 

Proceeds   of   sale    117 

Sole  and   separate  use    116 

Spendthrift    41 

Sui  juris,  all  parties  to  17 


INDEX.  329 

Page. 

Trusts- 
Trustees'  sale  to  cestui  que  trust  117 

Trustees,    notice    to    US 

Vested   equitable   remainders    113 

Trustee — 

Discretion   of    40 

Improvement  of  real  estate  by  47 

Investment  of  real  estate  47 

Mortgage  by 46 

Notice  to    115 

Sale  to,  by  the  cestui  que  trust  117 

Title- 
Act  presupposes  a  title  to  be  sold  156 

Before  act  was  passed,  acquired  28 

Condition  of  the  title,  Price  Act,  application  of,  depends  on  . .  22 

Descent    ,. 19 

Deed  by    19 

Doubt  as  to  title   156 

Dispute  as  to  title  • 156 

Gift  acquired  by 19 

Indefeasibility  of,  sold  155,  156 

Passed  by  sale  176 

Price  Act,  provisions  of  155 

Purchase,  acquired  by  27 

Purchaser  of,  see  Purchaser. 

World  good  against  155 

Will,  by 19 

Undivided  interest  26 

Minor  of 67 

Right  of  one,  to  compel  another,  to  join  in 26 

Private  sale  of   27 

Price  Act,  provisions  of  26 

No,  compulsory  divesting  of  10,  26 

Unincorporated  association    82 

Unproductive  real  estate   1 7,  34,  35 

Unimproved  real  estate  17,  34 

Use  of  property   • 

Uses,   statute   of    

Urgent  necessity 

Variance 

Between  order  of  sale  and  subsequent  proceedings 162 

Between  terms  of  advertisement  and  order  162 

Between  petition  and  decree,  Appendix  B  

Vendor  and  vendee 181 

Deceased  vendor  or  vendee  126 

Lunatic  vendor,  etc 73 

Rights  of  vendee,  under  agreement 179 

See  Orphans'  Court  sales  179 


INDEX. 

Page. 

Vested   remainders    17 

Vested  interest — 

Owner  sui  juris,  no  compulsory  sale  of  16-17-18 

Lease,  as  against  17 

Mortgage,  as  against   17 

Way,  right  of  change  of  location  of 59 

Weak-minded  persons   74 


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